(I 


i-^ff? 


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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


ON  THE  LAW  OF 


TELEGRAPH  AND  TELEPHONE 
COMPANIES 


BY 


S.  WALTER  JONES 


KANSAS  crrv.  MO. 

VERNON  LAW  BOOK  COMPANY 
1906 


T 
190  G 


Copyright,  1906, 

BY 

VERNON  LAW  BOOK  CO. 


Press  of 

E.  W.  Stephens  Publishing  Co. 

Columbia,  Missouri. 


TO  THE 

HON.   JAMES  C.  LONGSTREET 

OF  MISSISSIPPI^ 

SCHOLAR,  LAWYER,  GENTLEMAN. 


687144 


PREFACE. 

There  are  no  institutions  with  corporate  functions  which  have 
grown  so  rapidly  and  which  have  become  so  convenient,  so  necessary 
and  so  absolutely  indispensable  to  the  commercial  interests  of  the 
world  as  telegraph  and  telephone  companies.  Many  can  yet  remem- 
ber when  the  public  news  was  conveyed  by  the  slow  and  unreliable 
means  of  the  stage-coach,  but  now  every  city  and  nearly  every  town, 
village  and  country  place  is  enjoying  the  conveniences  of  these  insti- 
tutions; and  soon  a  perfect  network  of  telephone  wires  will  connect 
the  farmhouses  with  the  towns  and  cities,  bearing  the  news  of  each 
day's  important  happenings. 

It  must  follow,  therefore,  that  the  construction,  operation  and 
maintenance  of  telegraph  and  telephone  lines,  affecting  such  a  wide 
diversity  of  interests,  has  been  and  always  will  be  a  constant  source 
of  litigation.  The  author  has  sought  in  this  treatise  to  set  forth 
clearly  and  concisely  the  legal  rights,  duties  and  liabilities  of  these 
public  service  corporations,  with  respect  to  the  public  and  to  the  in- 
dividual. 

Several  years  ago,  when  the  science  of  telegraphy  was  new  to  the 
world,  there  were  two  books  written  on  the  subject  of  TelegTaph  Com- 
panies, but  these  authors  had  to  deal  with  the  first  stages  of  the  sub- 
ject's development;  and,  without  any  reflection  on  the  writers  or  their 
books,  the  law  applicable  to  these  companies  at  that  time  has  since 
undergone  many  changes. 

We  believe  this  is  the  only  treatise  on  the  combined  subject  of 
Telegi-aph  and  Telephone  Companies.  Consequently  the  author 
has  labored  under  many  difficulties.  It  has  been  necessary  to  resort 
to  the  original  sources  of  the  law,  as  well  as  to  examine  and  analyze 
the  many  decisions  of  the  courts  that  have  sought  to  apply  the  law  to 

V 


VI  PREFACE. 

these  companies.  Great  care  has  been  exercised  to  secure  accuracy  in 
the  citation  of  cases;  and  for  the  convenience  of  the  profession,  but 
with  considerable  labor  and  expense,  parallel  references  are  given  to 
the  principal  systems  of  reports  and  reporters. 

We  believe  that  every  principle  of  law  applicable  to  these  com- 
panies has  been  carefully  and  fully  set  forth  in  this  work.  How  well 
we  have  succeeded  in  this  task  must  be  judged  from  the  work  itself. 
We  ask  the  indulgence  of  the  profession  for  any  errors  that  may  ap- 
pear in  the  text. 

October  1,  1906.  S.  Walter  Jones. 


TABLE  OF  CONTENTS. 

CHAPTER   I. 

GENERAL  NATURE  OF  TELEGRAPH  AND  TELEPHONE 
COMPANIES. 

§  1.    Definition. 

2.  Distinction    between    telegraph    and    teleplione     companies — 

similarities. 

3.  Same  continued — dissimilarities. 

4.  Same  continued — liabilities  of  one  greater  than  the  other. 

5.  Telegraph  in  statutes — embrace  telephone. 

6.  Same  continued — reason. 

7.  Same   continued — reason    as    compared    to    improvements    on 

other  corporations. 

8.  Same  continued — under  statutes. 

9.  Same  continued — construction  of  statutes. 

10.  Same  continued — illustrated. 

11.  Same  continued. 

12.  Same  continued. 

13.  Same  continued — when  applied. 

14.  When  different  rule  obtains — intent  of  law-makers. 


CHAPTER  n. 

LEGAL  STATUS  OF  TELEGRAPH  AND  TELEPHONE— AS  TO 

PUBLIC  USE. 

§  15.  Right  of  eminent  domain. 

16.  How  to  be  exercised. 

17.  Telephone  included. 

18.  Accepting  right  of  eminent  domain. 

19.  To  regulate  charges. 

20.  Character  of  property. 


CHAPTER  HI. 


AS  TO  COMMON  CARRIERS. 

§  21.     Scope  of  chapter. 

22.  Common-law  theories. 

23.  Same  continued — decision  criticised. 

vii 


Vlll  TABLE   OF   CONTENTS. 

24.  Common-law    theory    continued — distinction    between     these 

and  common  carriers — reasons. 

25.  Common-law  theorj^  continued — analogy  to  common    carriers 

of  goods. 

26.  Common-law  theory  continued — degree  of  care. 

27.  Common-law  theory  continued — bailees  for  hire — analogy. 

28.  Common-law    theory     continued — quasi-common     carrier     of 

news. 

29.  Common    carriers    continued — law    applicable    to    both    tele- 

graph and  telephone  companies. 

30.  Statutory  theory. 

31.  Common  carriers  in  absence  of  statute  are  not — reason. 

32.  Reasonableness  of  statutes — making  them  common  carriers. 

33.  Statutes  superior  to  any  agreement. 

34.  Beyond  the  limit  of  the  state. 

35.  Substantial  compliance  with  form  of  message. 

36.  Prima  facie  negligence. 

37.  Cannot  exempt  themselves  by  contract. 

38.  Public  servants  must  serve  the  public    impartially    and    in 

good  faith. 

39.  Exception  to  rule. 

40.  Duty  to  forward  message  in  order  of  time  received. 

41.  Should  not  disclose  the  message. 


CHAPTER  IV. 

CORPORATE   RIGHTS   AND   FRANCHISES. 

§  42.  Definition. 

43.  Franchise  and  charter  distinguished. 

44.  Same  continued — distinction  between  franchise    and    license 

45.  Kinds  of  franchises. 

46.  Alienability  of  franchise — primary. 

47.  Same  continued — secondary. 

48.  Same  continued — leases. 

49.  Same  continued — legislature  may  authorize  alienation. 


CHAPTER  V. 

RIGHT  OF  WAY. 

50.  Definition. 

51.  Interest  in  land  acquired. 

52.  Same  continued — compensation. 

53.  Same  continued — owner  not  estopped. 

54.  Further  considered — how  and  from  whom  acquired. 


TABLE   OF  COXTENTS.  IX 

55.  Same  continued — federal  grant. 

56.  Same  continued — what  is  granted. 

57.  Statutes  defining  what  are  post-roads,  etc. 

58.  Must  comply  with  conditions — character  of. 

59.  Scope  and  effect  of  act — statute  permissive  only. 

GO.     State  cannot  prohibit  company  from  doing  business  therein 

on  compliance  with  said  act. 
CI.     Same  continued — exception  to  power — police  regulations. 

62.  Does  not  interfere  with  right  to  compensation. 

63.  Same  continued — reason  of  rule. 

64.  Same    continued — along    railroads — compensation,    when    al- 

lowed. 

65.  Same  continued — compensation    to    road — reason    for    allow- 

ing. 

66.  Same  continued — the  act  does  not  affect  the  right    to    com- 

pensation. 

67.  Same  continued — right  acquired  by  agreement. 

68.  Same  continued — executive  use — cannot  be  acquired. 

69.  Same    continued — different    rule    when    grant    from    United 

States. 

70.  Condemnation  proceedings — must  be  under  state  statutes. 

71.  Act  otherwise  considered. 

72.  State  grants. 

73.  On  railroad. 

74.  Same  continued — conditions  not  to    interfere    with    running 

trains. 

75.  Same  continued — award. 

76.  Canal — under  same  statutes. 

77.  The  term  "highway"  embraces  city  streets. 

78.  Conditions  of  grantee. 


CHAPTER  VI. 

MUNICIPAL  GRANTS. 

79.  Easement — where  vested. 

80.  Same  continued — authority — how  acquired. 

81.  Same  continued — terms  and  conditions. 

82.  Same  continued — unconditional  statutes. 

83.  Same  continued — city's  consent. 

84.  Must  petition  municipalities. 

85.  Compensation  to  municipalities. 

86.  Same  continued — city  control. 

87.  Same    continued — charge    in    nature    a    rental — decision     of 

point. 

88.  Same  continued — not  on  gross  income — effect  of. 


TABLE  OF  CONTENTS. 

89.  Same  continued — reasonable  charges. 

90.  Termination  of  franctiise  to  occupy  streets. 

CHAPTER  VII. 

CONSTRUCTION  AND    MAINTENANCE    OF    TELEGRAPH    AND 
TELEPHONE  LINES. 

§  91.  In  streets. 

92.  State  control. 

93.  Right  may  be  delegated  to  city. 

94.  City  control. 

95.  Unauthorized  use — nuisances. 

96.  Additional  servitude — in  general. 

97.  Taking  of  property  for  public  use — what  is, 

98.  Same  continued — illustrations. 

99.  When  dedicated  for  street  purposes — not  an  imposition. 

100.  The  different  uses  to  which    streets    and   highways    may    be 

put. 

101.  Cases  holding  not  entitled  to  compensation. 

102.  Same  continued — opinions. 

103.  Same  continued — new  use  of  the  easement. 

104.  Same  continued — upholding  same. 

105.  The  ground  upon  which  these  cases  are  sustained. 

106.  Same  continued — not  things  of  motion. 

107.  Contrary  view — additional  servitude — so  held. 

108.  Same  continued — rights  included  in  an  easement. 

109.  Same  continued — fee  in  abutting  owner. 

110.  Same  continued — abutter's  interest. 

111.  Same  continued — exclusive  and  public  use. 

112.  Same  continued — opinion  on  subject. 

113.  Same  continued — mandatory  injunction  allowed. 

114.  When  the  fee  is  in  the  public. 

115.  The  distinction — in  abutting  owner. 

116.  Same  continued — in  the  public. 

117.  When  title  or  fee  is  in  third  party. 

118.  Effect  of  legislative  grant — not  a  nuisance. 

119.  Amount  of  compensation  to  abutter. 

120.  Damages  to  abutting  owners — amount. 

121.  Remedies  of  adjoining  lot-owner. 

122.  Same  continued — ignorance  of  rights. 

123.  Same  continued — action  for  damages. 

124.  Further   considered — unauthorized  use  of   street — may  be  en- 

joined. 

125.  Liabilities  for  cutting  trees  overhanging  sidewalks. 

126.  Same  continued — punitory  damages. 

127.  Willful  intent — question  for  jury. 

128.  Trees  on   the  sidewalk. 


TABLE  OF  CONTENTS.  XI 

CHAPTER  VIII. 

OVER  PRIVATE  PROPERTY. 

129.  By  consent. 

130.  By  condemnation  proceedings. 

131.  General  rule— conditions  precedent. 

132.  Same  continued— petition— contents. 
133  Same  continued— name  of  petitioners. 

134.  Same  continued— name  of  land-owners— their  residence  and 

interest  in  lands— several  tracts  or  interests. 

135.  Same  continued— description  of  route. 

136.  Same  continued— description  of  poles. 

137.  Same  continued— notice— appointment  of  commissioners. 
138     Same  continued— sworn  to  by  officers. 

139.  Same  continued— failure  to  acquire  land  by  agreement  with 

land-owner. 

140.  The  interest  acquired. 

141.  Measure  of  damages. 

CHAPTER  IX. 

ON  RAILROAD  RIGHT  OF  WAY. 

§  142.   Right  acquired  by  act  of  Congress. 

143.  Additional  servitude. 

144.  Subsequent  purchaser  may  recover. 

145.  When  for  benefit  to  railroad. 

146.  Same  continued— no  additional  burden. 

147.  Same  continued— must  be  in  good  faith. 

148.  Same  continued — not  taxable. 

149.  Railroad  companies  to  be  compensated. 

150.  Right  to— must  first  be  acquired. 

151.  Interest  acquired  by  telegraph  companies. 

152.  By  condemnation. 

153.  Exception  to  rule. 

154.  Same  continued-cannot  be  defeated  by  claiming  it  should 

be  on  other  lands. 

155.  Foreign  telegraph  companies— right  to  condemn. 

156.  Same  continued— consolidation— agency. 

157.  Same  continued— general  and  special  laws. 

158.  Must  be  in  good  faith. 

159.  What  portion  of  right  of  way  may  be  taken. 

160.  Nature  of  petition. 

161     Same  continued— necessity  for  taking. 

162.  May  condemn  land  in  several  counties  in  one  proceeding. 

163.  Same  continued— constitutional. 


TABLE   OF  CONTEXTS. 

164.  Who  may  be  appointed  as  commissioners  and  how. 

165.  Duty  of  commissioners. 

166.  Special  court  for. 

167.  The  award  of  commissioners. 

168.  May  have  new  award. 

169.  Same  as  in  other  condemnation  proceedings. 

170.  Duty  the  company  owes  to  the  railroad  company. 

171.  The  measure  of  damages — extent  of  injury. 

172.  Same  continued — expense  incurred — no  reason. 

173.  Same   continued — measurement — true  rule. 

174.  Exclusive  right — on  railroads. 

175.  Contract  with  railroad  company  to  that  effect. 

176.  State  legislation — no  exclusive  grant. 

177.  Act  of  Congress — prohibits  exclusive  right. 

178.  Same  continued — contra  view — lines  on  same  poles. 

179.  Municipal  grants — exclusive — cannot  grant. 

180.  Vested  rights — cannot  be  impaired. 

181.  Same  continued — right  reserved. 

182.  Same  continued — police  power. 

183.  Right  to  extend  lines. 


CHAPTER  X. 

LIABILITY  FOR  INJURIES  CAUSED  BY  IMPROPER  LOCATION. 
CONSTRUCTION  AND  MAINTENANCE. 

§  184.  Injuries  to  persons  on  highways — in  general. 

185.  Same  continued — injury  on  highways. 

186.  Same  continued — abandonment — no  defense. 

187.  Same  continued — strength  and  stability  of  poles. 

188.  Same  continued — failure  to  restore  line  after  storm. 

189.  Same  continued — crossing  highways  and  railroads. 

190.  Same  continued — falling  poles  and  other  fixtures. 

191.  Obstruction  to  navigation  by  cable. 

192.  Negligence — the  basis  of  such  actions. 

193.  Negligence — what  constitutes. 

194.  Same  continued — failure  to  perform  duty. 

195.  Same  continued — an  injury  sustained. 

196.  Evidence  of  negligence. 

197.  Contributory  negligence. 

198.  Injuries  to  servants — under  common  law. 

199.  Same  continued — changed  by  statute. 

200.  Must  furnish  suitable  appliances  and  employees. 

201.  Injury  to  these  companies. 

202.  Interference  by  other  electrical  appliances — in  general. 

203.  Same  continued — how  operated — interference. 

204.  Same  continued — cause  of  disturbances. 


205. 
206. 


TABLE  OF   CONTENTS.  Xl^^ 

"Inductive"  electricity— meaning  of— effect. 
Same  continued— actions— causes  thereof. 


207.  Same  continued— decision  on  point. 

208.  Same  continued— decision  on  "conduction." 

209.  Same,  continued— priority   of   time— induction. 

210.  Same  continued— priority  of  time— conduction. 


CHAPTER  XL 

REGULATION  AND  CONTROL. 

211.  Federal  control. 

212.  Same  continued — concurrent  state  rights. 

213.  Telegraph  lines  over  subsidized  railroads. 

214.  State  control. 

215.  State  may  control  the  construction. 

216.  Same  continued — taxing  power. 

217.  Same  continued— penalty  for  delay  in  delivering  messages. 

218.  Same   continued— the   Pendleton   case— v?hat   embraced. 

219.  Same  continued— must  fall  within  meaning  of  statute. 

220.  Same  continued— offices  established— must  keep  open. 

221.  Same  continued— other  regulations. 

222.  Same   continued— limitation— impairment  of  contract. 

223.  Regulate  charges. 

224.  Same  .continued— constitutionality  of  statutes. 

225.  Same  continued— right  to  fix  charges— reason. 

226.  Same   continued— cannot    evade    statutes— charged    in    two 

items — patents. 

227.  Statute  rates  must  be  reasonable, 

228.  As  to  interstate  messages— cannot  fix  maximum  charges. 

229.  Must  furnish  services  notwithstanding  charges. 

230.  Municipal  control. 

231.  Powers  limited— generally  specified. 

232.  Power  to  revoke  franchise. 

233.  Cannot  impose  tax  license— not  police  power. 

234.  Cannot  regulate  rate— without  express  authority. 


CHAPTER  Xn. 

DUTIES  TO  FURNISH  EQUAL  FACILITIES  TO  ALL. 
§  235.    Telegraph — in  general. 


236. 


Same  continued — duty  to  furnish. 


237.    Must  have  sufficient  facilities 


238. 


Must  transmit  in  order  in  which  received. 


239.    Discriminations — cannot  make. 


xiv  TABLE   OF   COXTEiS^TS. 

240.  Same  continued — discrimination — nuist  be  just. 

241.  Same   continued — reasonable  discriminations. 

242.  Reasonableness  of  rates — how  determined. 

243.  Telephone  companies — furnish  equal  facilities. 

244.  Same  continued— whether  private  or  incorporated  concerns. 

245.  Statutes — declaratory  of  common  law. 

246.  Must  furnish  equal  service  and  facilities. 

247.  Same  continued — terms. 

248.  Whom  to  serve — persons  conducting  legitimate  business. 

249.  Same  continued — other  corporations. 

250.  When  may  refuse  to  furnish  services— abusive  language. 

251.  Same  continued— on  refusal  to  pay  charges  or  rent— other 

reasons. 

252.  Being  lessees  of  patents — no  excuse. 

253.  Lessee's  ground  for  refusal. 

254.  Remedies — mandamus. 

255.  Proper  parties. 

256.  By  injunction. 


CHAPTER  XITI. 

TRANSMISSION    AND    DELIVERY    OF    MESSAGES— GENERAL 
NATURE  OF  LIABILITY. 

§  257.  Telegraph  companies. 

258.  Same  continued — opinion  on  point. 

259.  Not  liable  as  ordinary  bailees  for  hire. 

260.  Same    continued — telegraph    and   telephone — liabilities — dis- 

tinctions. 

261.  Same  continued — telephone. 

262.  Message  for  person — make  reasonable  search. 

263.  Same  continued — when  compensated. 

264.  Long     distance     telephone — disconnected     at     intermediate 

points. 

265.  Duty  of  telegraph    companies    to    transmit — arises    not    on 

contract  alone. 

266.  Same  continued — further  duties. 

267.  Same  continued — must    accept    proper    messages — not    im- 

proper or  such  as  would  subject  the  company  to  indictment. 

268.  Same  continued^— such  as  would  subject  to  action  of  tort. 

269.  Same  continued — lines  down — other  reasons. 

270.  Must  be  properly  tendered — in  writing. 

271.  Same  continued — must  be  on  company's  blank. 

272.  Delivery  to  messenger  boy — not  delivery  to  company. 

273.  Same  continued — prepayment  of  charges  before  accepting. 

274.  Same  continued — failure  to  receive — damages — functions. 

275.  Transmit  without  delay. 


TABLE  OF  CONTENTS.  XV 

276.  Burden  of  evidence — delay — presumption. 

277.  Duty  to  inform  sender  when  delay  unavoidable. 

278.  Must  transmit  without  error. 

279.  Degree  of  care  in  transmission. 

280.  Liability  under  statutes — all  mistakes. 

281.  Same  continued — damages — actual — errors   in   transmission. 

282.  Duty  to  deliver — addressee — in  general. 

283.  Excuse  for  non-delivery. 

284.  Same  continued — not  excused  for. 

285.  Duty  to  inform  sender  of  non-^lelivery. 

286.  To  whom  made — delivery. 

287.  Delivery  to  wife. 

288.  Delivery  to  hotel  clerk — not  sufficient. 

289.  Where  two  pai'ties  have  same  name — delivery  to  one. 

290.  In  care  of  another. 

291.  To  authorize  agent. 

292.  Manner  of  delivery — written  copy. 

293.  No  duty  to  forward  messages. 

294.  Time  to  deliver. 

295.  Same    continued — two    messages    of    same    nature    received 

within  office  hours. 

296.  Free  delivery  limit. 

297.  When  sendee  lives  several  miles  from  office. 

298.  Same  continued — may  waive  right. 

299.  No  delivery  limit  fixed. 

300.  Must  use  due  diligence  to  deliver. 

301.  Same  continued — illustrations. 

302.  Diligence  exercised — evidence — burden  of  proof. 

303.  Failure  to  designate  with  accurateness  the  address. 

304.  Penalty  imposed  for  failure  to  deliver. 

305.  Duty  to  preserve  secrecy  of  message. 

306.  Same  continued — imposed  by  statute. 

307.  Same  continued — applicable  to  telephone  companies. 

308.  Messages  "in  care  of"  common  carriers. 


CHAPTER  XIV. 

NEGLIGENCE. 

309.  In  general. 

310.  Presumption   of   negligence — onus    proband!. 

311.  Same  continued — illustrations. 

312.  Presumption  may  be  rebutted. 

313.  Non-payment  of  charges — no  defense — regulation. 

314.  Contributory  negligence. 

315.  Messages  must  be  legible. 

316.  Same  continued — address  must  be  definite. 


XTl  TABLE  OF  CONTENTS. 

317.  Operator  writing  message  for  sender — tiis  agent. 

318.  Messages  not  stamped — contributory  negligence. 

319.  Delay  in  sending — no  contributory  negligence. 

320.  Injured  party — should  minimize  loss. 

321.  Presumed  to  perform  contract. 

322.  Should  resort  to  other  means  when  necessary. 

323.  Misinterpreting  message — addressee. 

324.  Should  read  carefully — sendee. 

325.  Cause — proximate — remote. 

326.  Contributory — negligence — same  rule. 

327.  Evidence — wealth  or  poverty  of  either  party — company. 

328.  Same  continued — party  injured. 

329.  Declaration  of  agents. 

330.  Subsequent  acts  of  company — of  plaintiff. 

331.  Evidence   of   plaintiff's   good    faith— erroneous    messages. 

332.  Same  continued — other  cases. 


CHAPTER  XV. 

COMPANIES  LIABILITIES  AS  AFFECTED  BY  THE  RULES  AND 
REGULATIONS. 

§  333.  Right  to  make  reasonable  regulations — in  general. 

334.  Must  be  reasonable. 

335.  Must  be  reasonably  applied. 

336.  Same  continued — reasonableness — who  should  decide. 

337.  Distinction  between  by-laws  and    rules  and    regulations    or 

resolutions. 

338.  Same  continued— particular  regulations. 

339.  Information  as  to  meaning  of  message — can  not  demand. 

340.  Delivery  at  company's  office — reasonable. 

341.  Prepayment  of  charge — reasonable  regulation. 

342.  Extra  charges  for  delivering  beyond  free-delivery  limit — not 

always  reasonable. 

343.  Deposit  for  ans-v*er — not  always  reasonable. 

344.  May  waive  prepayment. 

345.  Regulation  of  office  hours. 

346.  Same  continued — statutory  penalty  for  delay — hours  not  the 

same. 

347.  Reasonableness  of  the  rule. 

348.  Same  continued — waiver  of  regulations. 

349.  Employees  need  not  be  informed  of  other  office  hours. 

350.  Office  hours  as  affects  company's  duty— night  message. 

351.  Knowledge  of  sender  as  to  office  hours. 

352.  Telephone  companies — enforcement  of  tolls. 

353.  May  waive  regulations. 


TABLE  OF  CONTENTS.  XVll 

CHAPTER  XVI. 

DUTIES  UNDER  THE  COMMON  I.AW. 

354.  In  general. 

355.  Act  of  God — not  liable  for — contract. 

356.  Same  continued — express  contract. 

357.  Same  continued — burden  of  proof. 

358.  Public  enemy. 

359.  Same  continued. 

360.  Same  continued — mobs,  strikes,  etc. 

361.  Same  continued — strikes,  not  liable — must  supply  places. 

362.  Same  continued — in  cases  of  express  contracts. 

363.  Connecting  lines. 

364.  Negligence  of  the  sender  or  sendee. 

365.  Proximate  cause — burden  of  proof. 

CHAPTER  XVn. 

LIMITING  COMMON  LAW  LIABILITIES. 

366.  Stipulation  in  contract  of  sending. 

367.  Negligence — cannot  contract   against — in   most   states. 

368.  Applicable  to  statutory  penalty. 

369.  May  contract  against  negligence  in  some  states. 

370.  Prohibited  by  statutes  in  some  states. 

371.  Gross  negligence. 

372.  Same  continued — what  constitutes. 

373.  Ignorance  of  operator  of  the  locality  of  the  place. 

374.  Conflict  of  laws. 

375.  Stipulation  for  repeating  messages. 

376.  Same  continued — validity  of  such  a  stipulation. 

377.  Same  continued — further  reasons  for  their  own  protection. 

378.  Same  continued — extra  charge — no  increase  of  duty. 

379.  Same    continued — delay   in    delivery — non-delivery. 

380.  Same  continued — not  a  contract — compared  to  a  bill  of  lad- 

ing. 

381.  Same  continued — contract — no  consideration. 

382.  Same  continued — duress. 

383.  When  requested  to  be  repeated — question  of  fact. 

384.  Same  continued — binding  on  sender  only. 

385.  Times  within  which  claims  are  to  be  presented. 

386.  Same  continued — reasons  for  rule. 

387.  Same  continued — statutory  penalty — applicable. 

388.  Same  continued — not  to  be  prosecuted  by  the  public. 

389.  Stipulation  held  void  as  against  public  policy. 

390.  When  limitation  begins  to  run. 


SVlll  TABLE  OF   CO^TE^'TS. 

391.  Same    continued — delay    in    receiving    messages — does    not 

modify  stipulation. 

392.  Same  continued — unaware  of  wrong — not  binding. 

393.  Compliance  with  stipulation — what  constitutes. 

394.  Same  continued — waiver  of  written  claim. 

395.  Same  continued — nature  of  the  claim. 

396.  Must  be  presented  to  proper  officer. 

397.  Commencement  of  suit — whether  sufficient  notice. 

398.  Contrary  holding — better  view. 

399.  Limiting  liability  to  specific  amount. 

400.  Same  continued — nature  of — liquidated  damages. 

401.  Same  continued — insured — same  rule. 

402.  Night  messages — time  to  be  delivered. 

403.  Unavoidable  interruption — special  contract. 

404.  Over  connecting  lines — stipulation — exemptions. 

405.  Stipulation  against  cipher  messages — valid. 

406.  Same  continued — contrary  view. 

407.  Where  and  when  messages  accepted. 

408.  Delivery  to  messenger — valid. 

409.  Waiver  of  stipulation  limiting  company's  liability. 

410.  Burden  of  proof. 

411.  Proof  of  assent  to  stipulation. 

412.  Contrary  holding. 

413.  Special  contracts — not  applicable. 

414.  Small  type — not  fraud. 

415.  Assent  of  addressee. 

416.  Same  continued — illustrations. 

417.  Same  continued — actions  in  tort. 

418.  The  correct  view  as  considered. 

419.  Assent — proof  of — what  amounts  to. 

420.  Stipulation   posted   in   company's   office — not   binding. 

421.  Messages  written  on  blanks  of  another  company — binding. 

422.  Same  continued — knowledge  of  company's  stipulations. 

423.  Messages  delivered  to  company  by  telephone  or  verbally. 

424.  Principal  bound  by  the  knowledge  of  the  agent. 


CHAPTER  XVIII. 

LIABILITY    OF    COMPANIES    IN    PARTICULAR    CLASSES    OF 
CASES— CONTRACT    TO    FURNISH    MARKET 
REPORTS   AND   OTHER  NEWS. 

§  425.    In  general. 

426.  Market  reports,  etc. 

427.  Same  continued — organized  for  collecting  news. 

428.  Gambling   transactions — messages   in    regard   to. 

429.  Indecent  language — not  bound  to  accept. 


TABLE   OK   CONTKXTS.  XIX 

430.  Liable  civilly  or  ciiniinally^indecent  language. 

431.  Libel— liable  for. 

432.  Interstate  messages. 

433.  Recovery  of  statutory  penalty — not  applifable. 

434.  Sunday  messages — no  duty  to  send. 

435.  Sunday  contracts — void. 

436.  Same   continued — matters   of  necessity   or   charity. 

437.  Same  continued — illustrations. 

438.  Statutory  penalty — applicable. 

439.  Action  of  tort — rule  not  applicable. 

440.  Forged  and  fraudulent  messages. 

441.  Same  continued — negligence  must  be  proximate  cause. 

442.  Same  continued — operator  author  of  forged  message. 

443.  Same  continued — sub-agent,  forgery  of. 

444.  Same  continued — no  bar  to  action  ex  delicto. 

445.  Amount  of  damages. 

446.  Connecting  lines — passage  over — initial  line — general  rule. 

447.  Same  continued — English  rule. 

448.  Accept  all  the  charges — rule  not  changed. 

449.  Initial  company — diligence  to  deliver  to  other  line. 

450.  Same  continued — telephone — same  rule  applied. 

451.  Special  contract — may  become  liable  by. 

452.  Same  continued — who  may  contract. 

453.  Where  statutes  make  the  initial  carrier  liable. 

454.  Actions   on   extra-terminal   contracts — against  whom. 

455.  Connecting  lines. 

456.  Same  continued — duty  to  accept  messages  tendered. 

457.  Same  continued — duty  of. 

458.  Liability  of  connecting  lines. 

459.  Burden  of  proof. 

460.  Partnership  arrangement  between  the  several  lines. 

461.  Effect  of  contract  of  sending  on  connecting  lines. 

462.  Liability  for  defaults  of  common  agent. 

463.  Sender's  right  to  select  route. 

464.  Same  continued — result  of  bad  selection — initial    company 

not  liable. 

465.  Same  continued — exact  extra  fee  or  charges. 

466.  Liability  of  companies  between  themselves — actions. 

CHAPTER  XIX. 

ACTIONS  FOR  DAMAGES  RESULTING  FROM  NEGLIGENT 
DELAYS  OF  TRANSMISSIONS. 

467.  Parties — sender — in   general. 

468.  Same   continued — sender — action    in    tort    or   contract. 

469.  Same  continued — message — sent  by  agent. 


XX  TABLE  OF  CONTENTS. 

470.  Addressee — right  of  action — in  general. 

471.  Same  continued — grounds  on  which  rules  are  based. 

472.  English  rule — in  general. 

473.  Rule  applicable  to  telegraph  companies. 

474.  American  rule — in  general. 

475.  Same  continued— with  respect  to  telegraph  companies. 

476.  Addressee  beneficial  party. 

477.  Same  continued— sender  agent  of  addressee. 

478.  Action  for  breach  of  public  duty. 

479.  Same  continued — action  in  contract  or  tort. 

480.  Same  continued — damages  under  either. 

481.  Agent  for  addressee. 

482.  Right  under  statute. 

483.  Right  of  action — altered  message. 

484.  Sender  paying  charges— effect  upon  the  addressee's  right. 

485.  Third  party — right  of  action. 

486.  Under  special  statutes — penalty. 

487.  Addressee's  right  not  affected— by  failure  to  have  message 

repeated. 

488.  Actions  between  sender  and  addressee. 

489.  Contract  made  where  last  act  of  assent  was  dbne. 

490.  Same   continued— actions   between   sender   and   addressee- 

contract — where  made. 

491.  Same  continued — action  where  brought. 


CHAPTER  XX. 

MATTERS  OF  PLEADING,  PRACTICE  AND  EVIDENCE- 
GENERALLY. 

492.  Scope  of  chapter. 

493.  Character  of  action. 

494.  Same  continued— distinction    between  an    altered    message, 

and  one  not  sent  or  delivered. 

495.  Action— by  mandamus. 

496.  Action— injunction— specific  performance. 

497.  Service  of  process. 

498.  Pleadings  in  general. 

499.  Same  continued — nature  of. 

500.  Same  continued— special  statutes— amount  of  damages. 

501.  Same  continued— copy  of  telegram— part  of  pleading. 

502.  Same  continued— amendments  liberally  allowed. 

503.  Action — whether  in  contract  or  in  tort. 

504.  Actions  for  statutory  penalty. 

505.  Plea  to  the  declaration. 

506.  The  issue. 

507.  Presumption  of  negligence— burden  of  proof. 


TABLE   OF   CONTENTS.  XXI 


508.  Same  continued— effect  of  stipulation. 

509.  Evidence. 

510.  Same  continued— illustrations. 

511.  Question  for  jury. 

512.  Instructions  to  juries. 

513.  Withdrawing  the  case  from  the  jury. 


CHAPTER  XXI. 


MEASURE  OF  DAMAGES. 

514.  Scope  of  chapter. 

515.  Damages  defined. 

516.  General  rule— Hadley  v.  Baxendale. 

517.  Same  continued-not  only    actual    but    contemplative    dam- 

ages. 
518     Actions  in  contract  and  in  tort— applicable  to  both. 

519.  Same  continued— character  of  damages  arising  from  each- 
•      kind  of  actions— amount  of  information. 

520.  Damages  recoverable— illustrative  cases. 

521.  Same  continued. 

522.  Same  continued. 

523.  Remote  damages. 

524.  Same  continued— speculative  damages. 

525.  Intervening  causes. 

526.  Benefit  of  contract— loss. 

527.  Same  continued. 

528.  Effect  of  special  circumstances. 

529.  How  communicated  to  the  company— information. 

530.  Same  continued— damages— remote  and  speculative. 

531.  Cipher  or  otherwise  unintelligible  messages. 

532.  Same  continued— case  in  point— reason  of  rule. 

533.  Contrary  view. 

534.  Same  continued— information  on  face  of  the  message. 

535.  When  message  discloses  its  importance. 

536.  Same  continued— need  not  be  informed  of  all  facts. 

537.  Question   for   jury. 

538.  Same  continued— extrinsic  facts  of  importance. 

539  Rule  in  "mental  anguish  cases." 

540  Same  continued— relationship  of  person  affected. 

541 '   Same  continued-reason  of  rule-nearness  of  relationship. 
542'    Same  cbntinued-interest  of  the  party  m  the  transaction. 
543     same  continued-deprived  of  the  addressee's  consolation. 


xxii  TABLE  OF  co>;tj:xts. 

CHAPTER  XXil. 

MEASURE  OF  DAMAGES— CONTINUED— LOSS   OF    EXPECTED 

PROFITS   ON   SALES   BY  ERRORS   OF 

NEGLIGENCE   Un    TRANSMISSION. 

§  544.  In  general. 

545.  Sales  prevented — plaintiff  vendor — in  general — legal  sales. 

546.  Same  continued — measure  of  damages. 

547.  Loss  must  be  actual  and  substantial. 

548.  Orders  for  goods  not  delivered — in  general. 

549.  Same  continued — measure  of  damages. 

550.  Order  for  goods  erroneously  transmitted — purchaser's   duty. 

551.  Same  continued — goods  shipped  to  wrong  place. 

552.  Same  continued — stock,  bonds,   etc. 

553.  Messages  directing  agent  to  sell  or  purchase. 

554.  Same  continued — order  to  close  option  to  purchase. 

555.  Announcement  of  prices  or  state  of  market. 

556.  Contemplating  shipping — delay  in  message — loss. 


CHAPTER  XXni. 

MEASURE  OF   DAMAGES— CONTINUED— LOSS   OF 
EMPLOYMENT,  ETC. 

557.  In  general. 

558.  Loss  of  situation  or  employment. 

559.  Same  continued — actual  damages. 

560.  Same  continued— circumstances  tending  to  reduce  loss. 

561.  Loss  of  professional  fees. 

562.  Same  continued — losses  of  otherwise   professional  nature. 

563.  Same  continued — such  as  not  recoverable. 

564.  Losses  which  might  have  been  prevented. 

565.  Same  continued — must  show  same    would    have    been    pre- 

vented. 

566.  Failing  debtor — messages  from  creditors  regarding  same. 

567.  Failure  to  ti'ansmit  money. 

CHAPTER  XXIV. 

DAMAGES  CONTINUED— FOR  MENTAL  ANGUISH. 

568.  In  general. 

569.  Same  continued — subject  divided. 

570.  Damages  for  mental  anguish  and  suffering. 
"71.  Action  in  contract  or  tort — rule  the  same. 


TAULK   OK   CONTKNT.S.  XXlll 

572.  Rule  departed  from. 

573.  Same  continued — So  Relle  Case    overruled    and    reinstated. 

574.  Federal  court  view — how  held. 

575.  Ground  upon  which  these  cases  are  maintained. 

576.  View  of  subject  in  Louisiana. 

577.  Instances  in  which  damages  aie  allowed. 

578.  Limitation  of  rule. 

579.  Same  continued — suffering  mu.st  be  real. 

580.  Same  continued — must  be  the  result  of  the  cau.se  of  com- 

plaint. 

581.  Same  continued — suffering  must  be  of  the  plaintiff. 

582.  Same  continued — anguish   from   independent  causes. 

583.  Same  continued — must  have  prevented  the  injury. 

584.  Same  continued — postponement  of  funeral   services. 

585.  Same  continued — failure  to  transmit  money — no  cause. 

586.  Evidence  of  mental  suffering. 

587.  Same  continued — aggravation  of  suffering. 

588.  Same  continued — sickness  as  a  result — admissible. 

589.  Same  continued — matters  of  defense — want  of  affection. 

590.  Relationship  material. 

591.  Nature  of  damages. 

592.  Actions  do  not  survive — limitation. 

593.  Damages  for  mental  suffering — doctrine  denied. 

594.  When  may  be  basis  of  action — malicious  or  willful  wrong. 

595.  Reasons  for  not  allowing  such  damages. 

596.  Same  continued — other  reasons — nominal  damages. 

597.  Same  continued — mental  suffering  following  physical  pain. 

598.  Conflict  of  law — with  respect  to  mental  damages. 

599.  Rule  declared  by  statutes. 


CHAPTER  XXV. 

DAMAGES  CONTINUED— EXEMPLARY   OR  PUNITIVE- 
EXCESSIVE  AND  NOMINAL. 

600.  In  general — meaning  of  term. 

601.  Same  as  applied  to  corporations. 

602.  Done  by  agents  and  employees — malice. 

603.  Whether  a  question  of  fact  or  law. 

604.  The  purpose  of  such  damages. 

605.  Assault  and  battery. 

606.  Libel. 

607.  Malicious  prosecution. 

608.  Trespass — accompanied  with  malice. 

609.  Negligence — question  for  jury. 

010.    Same  continued — against  telegraph  companies, 
tjll.    Same  continued — actual  damages. 


XSIV  TABLE   OF  CONTENTS. 

612.  Excessive  damages. 

613.  When  rule  invoked. 

614.  Same  continued — mental  suffering — excessive. 

615.  Same  continued — not  excessive. 

616.  Nominal  damages. 

CHAPTER  XXVI. 

STATUTORY   PENALTY. 

§  617.    Object  and  purpose. 

618.  Construction  of  statutes — in  general — penal. 

619.  Same  continued — intention  of  statute — must  not  be  defeated 

by  construction. 

620.  A  penalty — not  damages — for  person  injured. 

621.  Who  mantain  suit. 

622.  Extraterritorial  effect — not  any. 

623.  Constitutionality  of  statutes. 

624.  Indiana  statute. 

625.  Character  and  form  of  message — -"futures." 

626.  Same  continued — form — cipher  telegrams. 

627.  Same    continued — written    on    message    blank — waiver     of 

right. 

628.  Breach  of  duty— proof  of. 

629.  Same  continued — amount   of  proof. 

630.  Complaint  and  proof  must  fall  under  statute. 

631.  Complaint — allegations  therein. 

632.  Actual  damages — need  not  prove. 

633.  Same  continued — does  not  bar  action  for  damages. 

634.  Actions  survive. 

635.  Connecting  line — liable. 

636.  Defenses — office  hours. 

637.  Same  continued — free  delivery  limits. 

638.  Same  continued — not  under  operation   of  statute — contribu- 

tory negligence. 

639.  Same  continued — harmless  errors. 

640.  Same  continued — Sunday  dispatches. 

641.  Stipulations — time  for  presenting  claim — effect  of. 

642.  Accord  and  satisfaction. 

643.  Prepayment  of  charges. 

644.  Repeal  of  statute — effect  of. 

CHAPTER  XXVH. 

TAXATION. 

§  645.    Introduction. 

646.  Power  of  state  to  tax. 

647.  How  assessments  may  be  made. 


TABLE   OF   CONTENTS.  ^^^ 


648.    Methods  of  taxation. 

649     Classification— discretion  of  legislature. 

650.  The  same  must  be  paid  when  properly  assessed. 

651.  Discrimination. 

652.  Lien  of  assessment. 

653.  Interstate  commerce— obstruction  of. 

654.  Property  of  telegraph  and  telephone  companies  used  in  in- 

terstate commerce— subject  to  state  taxes. 

655.  Taxation  on  capital  stock  in  proportion  to  length  of  line  in 

state. 

656.  Mileage  basis  of  valuation. 

657.  Assessment  of  telegraph  lines  for  taxation-^ew  \ork  state. 
658     License  tax — cannot  be  imposed. 

659.  Distinction  between  property  tax  and  privilege  tax. 

660.  Excise  tax. 

661.  Taxation  on  gross  receipts— interstate  business. 

662.  Same  on  message. 

663.  Municipal  tax— compensation— use  of  streets. 

664.  City  license  tax  on  telegraph  companies. 

665.  Special  franchise  taxes. 
666. 


Where  rights  of  being  a  corporation  are  derived  from  the 


United  States. 

667.  Interest  when  payment  of  taxes  is  delayed. 

668.  Taxes  of  telephone  companies. 


CHAPTER  XXVIII. 


TELEGRAPH  AND  TELEPHONE  COMMUNICATIONS  AS 
EVIDENCE. 

669.  In  general. 

670.  What  is  a  telegram. 

671.  Letters  and  telegrams— compared. 
672  Same  continued— admission  of. 

673.  Same  continued— presumption— exceptions. 

674.  Authorship  must  be  proved. 

675.  Proof  of  signature. 

676  Telegrams  as  declarations  of  sender. 

677  Telegrams  as  evidence  of  communication. 

678.  Rule  applicable  to  documentary  evidence. 

679.  Primary  evidence — in  general. 

680.  Rule  applicable  to  documentary  evidence  only. 

681.  Rule  applicable  to  telegrams. 

682.  Depends  upon  which  document  is  at  issue  ,,„„,, 

683.  Same  continued-contents     of    message     delivered     to     ad- 

684.  Messages  given  orally  for  transmission. 


XXVi  TABLE    OF   COXTEXTS. 

685.  Actions  to  recover  statutory  penalties  and  damages. 

686.  Secondary  evidence. 

687.  Proof  of  absence  of  the  original. 

688.  Notice  to  produce. 

689.  What  evidence  admissible  as  secondary. 

690.  Late  improvements  in  telegraphy. 

691.  Same   continued — secondary  evidence. 

692.  Testimony  of  witnesses. 

693.  Secondary  evidence  of  unstamped  contracts. 

694.  When  telegram  need  not  be  produced. 

695.  Declaration  of  employees  subsequently  employed. 

696.  Notice  by  telegram. 

697.  Telephone  communication  as  evidence. 

698.  Identity  of  person. 

699.  When  operator  converses. 

700.  Operator  as  interpreter. 

701.  Oaths  administered  by  means  of  telephone. 


CHAPTER  XXIX. 

TELEGRAPH  MESSAGES  IN  RELATION  TO  THE  STATUTE  OF 

FRAUDS. 

§  702.    Evidence. 

703.  Subject  matter  to  which  statute  applies. 

704.  How  statute  may  be  satisfied. 

705.  Company — agent  of  sender. 

706.  Message  delivered  to  company — effect    of    under    statute   of 

frauds. 

707.  Telegram  delivered  to  addressee — effect  under  statute, 

708.  What  telegram  should  contain. 

709.  Time  of  delivery  with  respect  to  making  of  contracts. 

710.  Written  contracts  adopted. 


CHAPTER  XXX. 

TELEGRAPH  MESSAGES  AS  PRIVILEGED   COMMUNICATIONS. 

§  711.  Introduction. 

712.  Same  continued — in  hands  of  telegraph  companies. 

713.  Postal  law  not  applicable  to  telegraph  messages. 

714.  Same   continued — would    assist    in    illegal   purposes. 

715.  Statutes   forbidding   disclosure   of   telegrams. 

716.  Same  continued — not  protected  by  postal  laws. 

717.  When  may  be  privileged  communications. 

718.  Steps  to  obtain  telegrams — in  general. 


TAliLK   OK   COXTKXTS.  XXVll 

719.  Same  continued— how  further  obtained— court  inspection. 

720.  Rule  for  describing  message  in  writ. 

721.  Same  continued— illustrations— valid  services. 

722.  Same  continued — when  invalid. 


CHAPTER  XXXT. 

CONTRACTS  BY  TELEGRAM. 

§  723.  In  general. 

724.  Alteration  of  telegram  does  not  affect  rule. 

725.  When  not  the  result  of  the  company's  negligence. 

726.  Same  continued — private  institution — does  not  affect. 

727.  What  must  contain. 

728.  When  offer  Is  complete. 

729.  Order  made  by  telegram. 

730.  Communication  both  by  post  and  telegraph. 

731.  When  contracts  take  effect. 

732.  There  must  be  a  distinct  and  definite  offer. 

733.  Offer  requiring  actual  receipt  of  acceptance. 

734.  Same  continued — how  request  implied. 

735.  Acceptance  must  be  made  within  time. 

736.  Revocation  of  offer. 

737.  Contract — what  law  governs. 

738.  Telegraph  company  ordinarily  the  agent  of  sender. 

739.  Sender  bound  on  message  as  received. 

740.  Within  the  meaning  of  the  statute  of  frauds. 

741.  Exception  to  the  rule. 

742.  English  rule. 

743.  Telegraph  company  an  independent  contractor. 

744.  Same  continued — may  be  sued. 

CHAPTER  XXXII. 

DISTRICT  TELEGRAPH  COMPANIES  AND  SUCH  AS  FURNISH 

"TICKERS." 

§  745.  Introduction. 

746.  Same  continued — duties  and  liabilities  of. 

747.  Company  furnishing  "tickers." 

748.  Same  continued — duties  and  liabilities. 

749.  Cannot  discriminate. 

750.  Unreasonable  stipulations — unenforcible. 

751.  Protection  against  unfair  competition. 


THE    LAW   OF  TELEGRAPH   AND 
TELEPHONE    COMPANIES. 


CHAPTER  1. 


GENERAL  NATURE  OF  TELEGRAPH  AND  TELEPHONE 
COMPANIES. 

§  1.    Definition. 

2.  Distinction    between    telegraph    and    telephone     companies — 

similarities. 

3.  Same  continued — dissimilarities. 

4.  Same  continued — liabilities  of  one  greater  than  the  other. 

5.  Telegraph  in  statutes — embrace  telephone. 

6.  Same  continued — reason. 

7.  Same  continued — reason    as    compared    to    improvements    on 

other  corporations. 

8.  Same  continued — under  statutes. 

9.  Same  continued — construction  of  statutes. 

10.  Same  continued — illustrated. 

11.  Same  continued. 

12.  Same  continued. 

13.  Same  continued — when  applied. 

14.  When  different  rule  obtains — intent  of  law-makers. 

§  1.    Definition. 

There  arc  many  ditferent  definitions  of  the  words,  "telegraph/' 
and  "telephone,"  and  the  reader  must  consult  his  own  judg- 
ment as  to  the  correctness  of  each.  Some  of  the  writers  de- 
tine  them  as,  "an  instrument  or  apparatus,  which  by  means  of 
iron  wires,  conducting  the  electric  fluid,  conveys  intelligence 
to  any  given  distance  with  the  velocity  of  lightning:"^  or,  "a 
machine  for  communicating  intelligence  from  a  distance  by  various 
tagnals  or  movements  previously  agreed  on ;  which  signals  repre- 
sent letters,  words,   and   ideas,  which  can  be  transmitted  from  one 


'Webster's  Int.' Die. 
T.  &  T.— 1 


(1) 


2  TELEGRAPH   AND  TELEPHONE  COMPANIES.  [^    1 

station  to  another  as  far  as  the  signals  can  be  seen :"  -  or,  "public 
vehicles  of  intelligence."  ^  These,  and  other  definitions,*  seem  to 
us  to  contain  too  much  irrelevant  matter.  For  instance,  it  is  not 
necessary  to  enumerate  the  different  parts  which  make  up  and  con- 
stitute the  machines  and  apparatus  by  means  of  which  messages  are 
sent;  because  there  are  so  many  improvements  being  made  daily  on 
these  machines,  and  in  the  course  of  time,  so  many  additional  im- 
provements may  be  made  as  not  to  permit  them  to  fall  within  the  defi- 
nition now  given.  A  definition  of  anything  should  be  sufficiently  com- 
prehensive to  cover  the  subject  for  all  time  to  come.  We  think  that 
the  following  will  meet  all  of  these  requirements;  not  only  will  it 
comprehend  and  cover  every  part  of  the  different  machines  which 
does  or  shall  constitute  the  entire  apparatus,  but  it  will  be  full 
enough  to  take  in  all  the  different  means  by  which  intelligence  is 
communicated : 

It  is  an  apparatus  or  process  hy  means  of  which  intelligence  ts 
transmitted,  either  hy  signals  or  sounds  to  points  beyond  the  limit 
of  ordinary  audibility.  There  are  different  machines  which,  put 
together,  constitute  this  apparatus  or  means  through  which  com- 
munications are  made.  For  instance  there  is  a  battery,  or  other 
sources  of  electric  power ;  a  line  wire  or  conductor  for  conveying  the 
electric  current  from  one  station  to  another ;  the  apparatus  for  trans- 
mitting, interrupting,  and  if  necessary,  reversing  the  electric  current 
at  pleasure :  and   the   indicator,  or  signal  instrument.^     There  are 

'  Webster's  Int.  Die.  ing    instrinnent."      See    Imperial    Die. ; 

'Fire  Iiisurance  Association  of  Eng-  Hockctt  v.  State,  10.5  Ind.  250,  5  N.  E. 

land    V.    Merchants'    &    Miners'    Trans.  178,  55  Am.  Rep.  210;  Chespeake,  etc., 

Co.,   66  Md.   339,   7  Atl.   905,   59  Am.  Tel.    Co.    v.    Baltimore,   etc.,    Tel.    Co., 

Rep.  162.     "The  word  'telegraph'  is  now  06  Md.  399,  59  Am.  Rep.    167,  7  Atl. 

generally  understood  as  refering  to  the  809.  See,  also,  Atty.-Gen.  v.  Edison  Tel. 

entire  system  of  appliances  used  in  the  Co.,  6  Q.  B.  D.  248.     Telegraph  line  or 

transmission  of  telegraphic  messages  by  system,   as   used   in   ordinary   statutes, 

electricity,  consisting  of:    (1)   a  battery  will   not   embrace   a   distinct   telegraph 

or  other  source  of  electric  power;    (2)  system.      See   Toledo  v.   West.   U.   Tel. 

a  line  wire  or  conductor  for  conveying  Co.,  107  Fed.  10,  46  C.  C.  A.  111. 

the    electric   current   from   one   to    an-  *  Central  Union  Tel.  Co.  v.  Falley,  118 

other;    (3)  the  apparatus  for  transmit-  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep. 

ting,  interrupting,  and  ij  necessary,  re-  114. 

versing,    the   electric   current   at   pleas-  °  Hockett  v.  State,  105  Ind.  250,  5  N. 

ure;   and    (4)    the  indicator,  or  signal-  E.   178,  55  Am.  Rep.  210. 


§    2]  GENERAL  NATURE.  O 

different  means  by  which  intelligence  is  transmitted;  as  by  tele- 
phone ;  by  the  telegraph  which  may  be  either  by  a  line  wire  or  with- 
out any  wire  at  all — or  wireless  telegraph;  and  by  means  of  the 
speaking  tube.  The  several  apparatuses  may  be  quite  different  in 
their  construction  but  by  means  of  each  the  same  object  is  accom- 
plished. They  all  convey  intelligence  either  by  signals,  by  letters  or 
by  sounds ;  or,  by  the  voice  transmitted  beyond  the  limit  of  ordinary 
natural  sight  or  audibility ;  the  last  part  of  this  definition  may  have 
the  tendency  to  exclude  therefrom  the  speaking  tube.  While  the 
last-named  device  is,  strictly  speaking,  a  telephone,  under  its  generic 
term,  yet  it  will  hardly  be  so  considered  in  a  special  way  and  will 
not  be  thus  understood  under  the  present  discussion;  since  in  the 
recent  improvements  in  telephonic  instruments,  the  telephone  is 
technically  and  primarily  restricted  to  an  instrument  or  device  which 
transmits  sound  by  means  of  electricity  and  by  wires  similar  to  tele- 
graphic wires. 

We  do  not  care  to  be  understood  as  saying  that  this  definition 
is  broad  and  definite  enough  to  describe  the  different  systems  in 
such  a  manner  as  would  enable  any  one  to  make  a  distinction  be- 
tween them ;  nor  do  we  intend  to  convey  the  idea  that  they  are  one 
and  the  same  thing.  And  here,  it  might  be  said,  a  definition  is  a 
peculiar  one  which  attempts  to  define  two  or  more  different  and  dis- 
tinct objects  when  it  describes  neither  of  them  sufficiently  so  that 
the  one  may  be  distingiiishcnl  from  the  other.^  In  a  sense,  this 
is  true,  but  as  a  means  to  an  end — an  accomplishment  of  the  same 
purpose — this  definition  is  sufficiently  broad,  clear  and  distinct  to 
comprehend  all  systems,  and  definite  enough  for  that  purpose  to  de- 
scribe each.  Ihey  are  so  similar  in  nature  that  when  the  law  speaks 
of  one,  it  generally  means  the  other  also. 

§  2.     Distinction  between  telegraph  and    telephone    companies — 
similarities. 

In  preparing  a  work  in  which  two  different  subjects  are  to  be. 
treated  as  nearly  as  possible  as  being  one  and  the  same,  it  may  be 
proper  at  the  outset  to  draw  and  set  forth  the  distinguishing  feat- 

«Hockett  V.  State,  105  Ind.  250,  5  N. 
E.    178,  55   Am.   Rep.   210. 


4  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    ^ 

nres  between  the  two  in  order  to  determine  the  application  of  the 
law  to  each.  Therefore,  in  applying  the  rule  generally  it  will  be  our 
purpose  to  apply  it  specifically  by  attempting  to  briefly  state  the  simi- 
larities and  dissimilarities  between  telephone  and  telegraph  com- 
panies as  they  are  being  discussed  under  one  title.  In  £vlmost  every 
respect  these  companies  are  very  similar,  if  not  identical,  with  re- 
spect to  their  construction.  Each  of  them  must  erect  its  posts  or 
poles  and  upon  the  tops  of  these  attach  its  lines  of  wires  from  point 
to  point,  when  it  is  not  otherwise  provided  that  they  are  to  be 
placed  under  the  surface.  Each  must  have  offices  or  connecting  ex- 
changes with  operators  or  employees  thereat.  Each  must  almost  nec- 
essarily enter  upon,  along,  or  across  public  roads,  highways,  streams, 
bodies  of  water  and  upon  lands  of  individuals  for  the  purposes  men- 
tioned." In  this  respect  they  are  identical,  and  the  same  law — 
common  and  statutory — applies  to  both. 

§  3.     Same  continued — dissimilarities. 

While  the  object  of  these  two  companies  is  to  accomplish  the  same 
purpose — the  transmission  of  intelligence  from  place  to  place  by 
means  of  electricity — the  manner  in  which  this  object  is  accom- 
plished is  not  the  same,  and  this  is  w^herein  they  are  materially  dif- 
ferent— and  this,  too,  to  a  certain  extent  watli  respect  to  the  applica- 
tion of  the  law  to  the  two.  In  order  to  be  able  to  transmit  news  in- 
telligently over  telegraph  lines,  there  must  be  some  one  skilled  in 
telegraphy  to  operate  the  telegraphic  instruments  and  machines.  It 
requires  much  time  and  experience  for  a  person  to  become  familiar 
with  the  science  and  art  of  telegraphy  so  as  to  be  able  to  control  suc- 
cessfully and  promptly,  the  amount  of  news  necessarily  and  natur- 
ally carried  by  these  companies.  While,  on  the  other  hand,  any  one 
without  experience  can  converse  with  easy  understanding  over  a  tele- 
phone line  where  the  connections  are  properly  made.  There  may 
be  instances  where  the  telephone  could  not  take  the  place  of  the  tele- 
graph, but  as  a  general  thing,  they  will  be  more  convenient  and  of  less 
expense  than  the  latter.  Almost  all  the  commercial  business,  espec- 
ially in  large  cities,  is  carried  on  over  telephone  lines.     ]\Ien  of  all 

^Wisconsin  Tel.  Co.  v.  City  of  Osh- 
kosh,  62  Wis.  36,  21  N.  W.  828. 


<^    4]  GENERAL,  NATURE.  5 

professions  and  avocations  of  life  may  and  do  have  their  offices  and 
business  houses  supplied  witli  telephone  facilities.  When  they  have 
good  connections  at  the  exchanges  it  is  no  troulile  to  transact  any 
kind  of  business  over  the  telephone  lines ;  but,  to  have  the  same  con- 
nections with  telegi-aph  lines,  would  necessitate  all  the  patrons  to 
liave  skilled  teleoraph  operators  both  to  receive  and  transmit  their 
l)nsiness  messages. 

§  4.    Same  continued — liabilities  of  one  greater  than  the  other. 

It  is  further  true  that  on  account  of  the  different  methods  by 
which  the  ('(.nnnunication  of  intelligence  is  made,  liabilities  for  the 
negligent  transmission  of  a  message  is  not  so  liable  to  arise  in  one  as 
in  the  other.  Messages  sent  by  a  telegraph  company  are  communi- 
cated, not  directly  by  the  parties  themselves,  but  by  third  parties ;  or, 
more  strictly  and  correctly  speaking,  by  operators  who  are  presumed 
to  be  skilled  in  their  business  as  employees  of  the  company.  To  err 
is  human  and  they,  who  are  human,  are  most  liable  to  err  in  the 
transmission  of  news,  either  by  not  being  prompt  in  the  transmis- 
sion, or  by  not  sending  the  same  correctly;  when  they  are  guilty  of 
either  or  both  of  such  errors,  the  company  will  be  liable.  On  the 
other  hand,  all  that  is  required  of  the  operators  or  employees  of  a 
telephone  company,  is  to  give  proper  connection  and  similar  accom- 
modations to  all  who  apply  to  them.  Then,  wdth  respect  to  the  ac- 
curacy of  the  message,  the  parties  themselves  can  hold  none  save 
themselves  liable.  They  come  in  direct  contact  and  can  converse 
with  each  other  with  the  same  distinct  and  clear  understanding  as 
if  they  were  not  only  together  in  voice  but  in  person ;  and  errors  out 
of  which  actions  might  otherwise  arise,  should  it  have  been  made  in 
a  telegi-am,  may  be  easily  corrected  by  the  parties  themselves.  To  this 
extent  telephone  companies  are  not  subjected  to  the  same  liabilities 
with  which  telegTaph  companies  are  most  often  confronted.  It  is  true 
that  the  telephone  companies  stand  in  the  same  relation  to  those  who 
are  caiTying  on  communications  over  their  lines  as  that  of  telegraph 
companies,  and  the  same  law  is  applicable  to  both  but  the  distinc- 
tion desired  to  be  drawn  and  the  apparent  difference  and  misunder- 
standing of  the  law  applicable  thereto,  arises  from  the  two  methods 
bv  which  the  cuuinuniications  are  made.     While  in  one  the  liability 


6  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§    5 

of  the  company  Avhicli  would  be  caused  by  the  negligeuce  of  the  em- 
ployee in  tlie  transmission  of  the  message,  might  be  avoided  by  the 
other  on  the  ground  that  the  negligence  was  not  that  of  the  company 
but  the  patrons  themselves.  In  one,  the  company  would  be  to  a  cer- 
tain extent  acting  in  the  capacity  of  an  agent  for  the  two  parties  and 
be  controlled  under  the  laws  of  agency ;  while  in  the  other,  during  the 
course  of  communication,  the  company  would  not  be  considered  as  an 
agent  and  thcrebj''  subjected  to  the  laws  of  agency.  Suppose,  for  in- 
stance, there  is  a  proposition  made  over  a  telegraph  line  to  sell  cer- 
tain property  at  a  certain  price  but  in  the  transmission  of  this  propo- 
sition the  companj^  negligently  altered  or  changed  the  price  for  which 
the  property  was  proposed  to  be  sold,  and  the  addressee  of  the  mes- 
sage accepts  the  proposition  at  its  altered  price.  In  this  case,  it  is 
not  right  that  either  the  owner  of  the  property  or  the  acceptor  of  the 
same  should  suffer  from  the  error  negligently  made  by  the  company ; 
but  the  company  which  acts  in  the  capacity  of  agent  should  suffer 
for  his  own  negligence  and  be  liable  under  the  laws  of  agency.^  If 
the  same  transaction  should  have  been  carried  on  over  a  telephone  by 
the  contracting  parties  and  the  sale  had  been  consummated  for  a 
price  not  intended  but  as  understood  by  the  contracting  parties  in 
their  conversation,  they  and  not  the  company  would  be  the  parties  to 
suffer.  Yet  if  the  error  had  been  made  by  the  employees  of  the 
company  it  would  be  liable.  For  instance  if  the  conversation  was 
carried  on  by  one  of  the  contracting  parties  and  an  employee  of  the 
company  who  was  conducting  or  carrying  on  the  conversation  as  dic- 
tated to  him,  and  he  should  mistake  or  misunderstand  the  conversa- 
tion whereby  an  injury  was  inflicted,  the  company  would  be  liable  for 
such  injury.  In  offering  and  acting  as  one  of  the  communicants,  he 
subjects  the  company  as  their  agency  through  which  the  transaction 
is  conducted. 

§  5.     Telegraph  in  statutes — embrace  telephone. 

The  science  of  telegraphy  was  very  generally  used  long  prior  to 
the  invention  of  the  telephone.  Statutes  had  been  enacted  in  which 
certain  rights  and  privileges  had  been  granted  and  duties  and  obli- 

*  See  chapter  on  "Company  Agent  for 
Sender." 


^    G]  GENERAL    NATL'KE,  7 

gations  imposed  on  these  companies  without  any  reference  to  any 
other  mode  of  commnnication  of  intelligence  by  means  of  electricity, 
save  that  by  telegraph.  To  be  sure,  it  would  have  been  impossible  to 
have  made  references  to  something  which  was  not  in  existence.  This 
being  the  case,  the  question  which  puzzled  the  courts  at  the  time 
when  telephones  first  bcgim  to  be  used  to  any  extent  was.  How  such 
statutes  should  be  construed  ?  Could  such  statutes  which  mentioned 
only  the  name  "telegraph"  embrace  and  have  reference  to  "tele- 
phones?" By  determining  this  question,  by  reason  of  which  the 
proper  construction  may  have  been  placed  on  these  statutes,  the 
definition  of  telephone  would  and  should  have  taken  a  con- 
spicuous part.  Under  our  definition,  it  would  most  assuredly  have 
been  comprehended  and  embraced  under  the  name  of  telegraph ; 
which,  as  Mr.  Anderson  very  wisely  says,  includes  any  apparatus  for 
transmitting  messages  or  other  communications  by  means  of  elec- 
trical signals,^  although  such  companies  are  not  specifically  men- 
tioned therein, ^"^  or  knov.n  at  the  time  the  act  was  passed. ^^ 

§  6.     Same  continued — reason. 

It  has  been  held  by  most  of  the  courts  if  not  all  that  where  a  stat- 
ute imposes  certain  rights,  duties  and  obligations  on  telegraph  com- 
panies— expressly  mentioning  these  companies  without  reference  to 
any  other  mode   of   communication — the    same   embraces   telephone 

"Anderson's    Law    Dictionary.  Jersey  Co.,  53  N  .J.  L.  341,  21  Atl.  860; 

'"Roberts   v.   Wisconsin   Tel.    Co..    77  Xcw    York,    etc.,    Tel.    Co.    v.     Bound 

Wis.  589,  46  N.  W.  800,  20  Am.  St.  Rep.  Brook,  G6  N.  J.  L.   168,  48  Atl.   1022; 

144;  Wis.  Tel.  Co.  v.  City  of  Oshkosh,  Bell  Tel.  Co.  v.  Com.,  38  Atl.  825;  Tag- 

62  Wis.  32,  21  N.  W.  828;  Cumberland  gart  v.   Interstate  Tel.   Co.,    16  Montg. 

Tel.,   etc.,    Co.    v.    United    Electric   Co.,  Co.  Law  Rep.  Pa.  155. 

42  Fed.  273 ;  Davis  v.  Pacific  Tel.,  etc.,  'i  New  Orleans,  etc.,  R.  Co.  v.  Soutli- 

Co.,   127   Cal.   312,  59   Pac.  698;   Ches-  grn,   etc.,   Tel.   Co.,   53  Ala.     211;      St. 

peake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Louis  v.  Bell  Tel.  Co.,  96  Mo.  623,  10  S. 

Tel.  Co.,  66  Maryland  399,  7  Atl.  809,  ^y.   197,  9  Am.   St.  Rep.   370,  2  L.  R. 

59  Am.  Rep.  167;  St.  Louis  v.  Bell  Tel.  a.  278n;  Atty.-Gen.  v.  Edison  Tel.  Co., 

Co.,  96  Mo.  623,   10  S.  W.   197,  9  Am.  OQ.  B.  D.  244,  20  Moak  602.     Compare 

St.  Rep.  370,  2  L.  R.  A.  278n;  Roake  Richmond  v.    Southern   Bell  Tel.,  etc.. 

V.   American   Tel.,   etc.,    Co.,   41    K   J.  Co.,    174    U.    S.    761,    19    S.    Ct.    Rep. 

Eq.  35,  2  Atl.  619;  Duke  v.  Central  New  77s. 


8  TELEGRAPH  A^'D  TELEPHONE  COMPANIES.  L§    6 

companies  as  well/-  unless  there  are  other  special  controlling  con- 
ditions which  would  produce  a  different  result.     It  is  true  that  the 
methods  by  which  the  intelligence  is  transmitted  by  the  telegraph 
and  telephone  companies  are  somewhat  different,  yet  there  is  quite 
a  similarity  between  the  two.     For  instance  it  is  necessary  for  them 
both  to  have  wires  over  which  the  transmission  is  to  be  made,  and 
which  are  similarly  supported;  they  both  use  batteries  for  the  pro- 
duction of  electric  currents  necessary  for  conveying  the  signals  and 
sounds ;  and,  they  both  exircise  the  right  of  eminent  domain  for  the 
purpose  of  constnicting  their  line  of  wires — along  which  the  similari- 
ties of  the  two  are  identical,  and  if  it  were  not  for  the    fact    that 
we  could  examine  the  temiinals  of  the  two  lines,  we  could  not  dis- 
tinguish one  from  the  other.     They  are  performing  the  same  duties 
toward  the  public;  and,  w^hile  the  one  was  not  mentioned  nor  even 
contemplated  at  the  time  these  statutes  were  enacted,  yet  this  is  no 
reason  why  the  law-makers  did  not  then  intend  to  incorporate  and 
comprehend  therein  all  the  improved  methods  which  might  thereaf- 
.ter  be  made  for  transmitting  messages  over  telegraph  lines. ^^     The 
telephone  is  but  a  novel  method  to  accomplish  the  object  for  which 
the  telegTaph  was  used.     It  is  the  introduction  of  a  new  device,  re- 
cently discovered,  by    means  of    which    an    improvement   has    been 
made  in  the  transmission  of  sound — an  improvement    in    the    ap- 
paratus so  as  to  change  the  transmission  of  the  signals  or  sounds  to 
that  of  the  voice,  by  causing  electrical  undulations  similar  in  form 
to  the  vibration  of  air  accompanying  the  vocal  sounds.    It  is  not  pre- 
sumed that  it  w-as  the  puiqDose  of  the  body  of  lawmakers  to  enact  laws 
which  should  apply  altogether  to  the  operation  of  any  business  in- 
stitution as  it  was  carried  on  at  the  time  of  the  adoption  of  the  act. 

"  Statutes  authorizing  telegraph  com-  companies  to  occupy  highways.  See 
panies  to  exercise  the  right  of  eminent  Peoples  Tel.,  etc.,  v.  Berke,  etc.,  Turn- 
domain  apply  to  telephone  companies.  pike  Road,  199  Pa.  St.  411;  North- 
San  Antonio,  etc.,  R.  Co.  v.  S.  W.  Tel.,  western  Tel.  Exch.  Co.  v.  Chicago,  etc., 
etc.,  Co.,  93  Tex.  313,  56  S.  W.  201,  77  R.  Co.,  76  Minn.  334;  79  N.  W.  315. 
Am.  St.  Rep.  884,  149  L.  R.  A.  459;  '^  "In  these  days  there  ought  to  be 
South  Western  Tel.,  etc.,  Co..  v.  Gulf,  no  one  to  question  the  statement  that 
et.-*.,  R.  Co.,  52  S.  W.  106;  Gulf,  etc.,  a  telephone  is  simply  an  improved  tel- 
R.  Co.  V.  Southwestern  Tel.,  etc.,  Co.,  egraph."  Northwestern  Tel.  Exch.  Co. 
18  Tex.  Civ.  App.  500,  45  S.  W.  157,  v.  Chicago,  etc.,  R.  Co.,  76  Minn.  334, 
also  of  the  state  authorizing  telegraph  79  X.  ^^■.  315. 


§    7]  GENERAL    NATURE.  9 

If  any  presumption  is  to  be  indulged  in,  it  is  that  general  legislative 
enactments  are  mindful  of  the  growth  and  increasing  needs  of  so- 
ciety, and  they  should  be  so  constructed  as  to  encourage  rather  than 
to  embarrass  the  inventive  and  progressive  tendency  of  the  people. ^^ 
We  live  in  a  land  of  progress  and  advancement  and  as  the  world 
grows  older  the  wiser  man  becomes.  Inventions  and  improvements 
of  a  few  years  back  and  which  at  the  time  seemed  to  be  complete  in 
construction  in  every  respect,  have  become  noviated  and  developed  be- 
yond the  greatest  expectation  of  the  inventor.  This  is  not  a  new 
fact,  not  a  new  idea;  for  such  has  been  the  case  since  the  dawn  of 
creation  and  will  continue  until  man  shall  have  discovered  and  mas- 
tered the  hidden  and  unseen  mysteries  of  the  universe,  and  when 
there  will  be  nothing  left  to  which  he  may  devote  his  mind  for  the  up- 
building of  his  fellow-man. 

§  7.     Same  continued — reasons  as  compared  to   improvements   on 
other  corporations. 

The  improvements,  indeed  the  revolution,  in  the  method  of  tran- 
sacting the  business  of  each  of  the  great  corporations,  have  never 
given  rise  to  a  suspicion  that  these  additional  methods  for  accom- 
plishing the  same  purpose  were  inconsistent  with  the  original  powers 
granted  to  them  in  their  constituting  instruments.  Railroad  corpora- 
tions which  were  created  even  before  the  invention  of  the  telegraph, 
have  since  constructed  these  lines  along  their  rights  of  way  for  pur- 
poses of  convenience  in  carrying  out  the  business  enterprises  forwhich 
they  were  created ;  and  it  is  a  settled  fact  that  they  are  not  an  addi- 
tional servitude  to  the  roadway  and  one  different  from  that  for  which 
it  was  acquired  and  for  which  further  consideration  would  be  neces- 
sary. Street  car  corporations  which  were  created  at  a  time  when  the 
method  of  propelling  their  vehicles  was  by  the  means  of  the  horse 
power,  have,  since  the  discovery  and  development  of  the  electric  or 
motor  system,  adopted  this  igenious  means  for  the  purpose  of  run- 


'*  Hudson  River  Tel.  Co.  v.  Railway 
Co.,  135  N.  Y.  393,  31  Am.  St.  Rep. 
838,  17  L.  R.  A.  674. 


10  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    8 

ning  their  cars,  without  any  change  of  the  old  charter.  ^^  The  pur- 
pose for  which  these  corporations  were  originally  created  was  for 
the  convenience  of  public  travel  along  and  upon  the  streets  and  high- 
ways. By  the  adoption  of  this  new  improved  method  of  motor 
power,  their  purposes  have  been  changed  only  for  the  betterment  of 
their  enterprises  and  for  convenience  to  the  public.  The  same  rule 
should  and  does  apply  to  the  improvements  of  the  telegraph  with  re- 
spect to  the  newly-discovered  method  of  transmitting  intelligence  by 
means  of  the  telephone. 

§  8.    Same  continued — under  statutes. 

^Iv.  Freeman  has  made  a  very  thorough  discussion  of  this  subject 
on  the  law  of  the  telephone  and  it  will  be  our  pleasure  to  here  quote 
what  he  says  in  regard  to  this  particular  subject:  "In  considering 
such  questions  as  have  been  presented  to  them,  the  courts  have  al- 
most uniformly  regarded  the  telephone  and  the  public  and  private 
rights  and  duties  growing  out  of  it  as  similar  in  character  and  extent 
to  the  telegraph,  and  the  public  and  private  rights  growing  out  of 
the  invention  and  general  use.  Thus,  in  England  the  term  'tele- 
gram' has  been  adjudged  to  include  a  conversation  by  means  of  tele- 
phone, and  the  telephone  business  to  be  within  the  statute  giving  to 
the  postmaster-general  the  exclusive  control  of  the  transmission  of 
messages  by  telegraph.  ^^  In  Iowa,  telephone  companies  are  classed 
with  telegraph  companies,  for  the  purpose  of  determining  the  juris- 
diction of  the  justice  of  the  peace  over  them ;  ^''  and  deciding  where 
and  how  they  and  their  property  shall  be  assessed.  ^^  So,  in  discuss- 
ing whether  telephone  corporations  were  entitled  to  use  the  public 
streets,  or  to  exercise  the  right  of  eminent  domain,  and  whether  they 
were  subject  to  legislative  control  for  the  purpose  of  preventing  un- 
reasonable discriminations  and  the  imposition  of  exorbitant  charges, 

•     "  Hudson  Eiver  Tel.  Co.  v.  Railway,  "  Atty.-Gen.  v.  Edison  Tel.  Co.,  L.  R. 

135  N.  Y.   393,   31   Am.   St.   Rep.  338;  6,Q.  B.  D.  244. 

Turnpike,   etc.   v.   R.   Co.,   31   Am.    St.  "Franklin   v.    N.    W.   Tel.,   69    Iowa 

Rep.  838,  17  L.  R.  A.  674;  Cincinnati  97,  28  N.  W.  461. 

Inclined  Plane  Ry.   Co.  v.     City     and  "Iowa   Union   Tel.    Co.   v.   Board   of 

Suburban  Tel.  Assn.,  29  Am.  St.  Rep.  Equalization,   67   Iowa  250,  25  N.   W. 

559,  48  Ohio  St.  390,  27  N.  E.  890,  12  155. 
L.  R.  A.  534. 


§8]  GENEEAL  NATURE.  11 

the  courts  have  generally  proceeded  upon  the  assumption  that  the 
rights,  duties  and  obligations  of  such  corporations  are  analogous  to 
those  formed  for  the  purpose  of  carrying  on  the  business  of  transmit- 
ting messages  and  news  by  the  use  of  the  telegraph.  In  Wisconsin, 
the  statute  regarding  the  corporations  provided,  among  other  things, 
that  corporations  might  be  formed,  'to  build  and  operate  telegraph 
lines  and  conduct  the  business  of  telegraphing,  and  to  conduct  and 
maintain  their  lines  with  all  necessary  appurtenances.'  It  was  held 
that  this  statute  authorized  the  incorporation  of  a  telephone  com- 
pany.^® The  statute  of  Pennsylvania  controlling  telegraphic  cor- 
porations enacted  that  'the  said  telegraphic  corporation  shall  receive 
dispatches  from  and  for  other  telegraph  lines  and  corporations,  and 
from  and  for  individuals ;  and  on  payment  of  their  usual  charges  to 
individuals  for  transmitting  dispatches  as  established  by  the  rates 
and  rcgiilations  of  such  telegraph  lines,  transmit  the  same  with  im- 
partiality and  good  faith,  under  penalty  of  one  hundred  dollars  for 
every  neglect  or  refusal  so  to  do.'  On  an  application  being  made  to  the 
court  of  common  pleas  of  the  city  of  Philadelphia  by  the  common- 
w^ealth  on  the  relation  of  the  Baltimore  and  Ohio  Telegraph  Com- 
pany for  a  writ  of  mandate  to  compel  the  Bell  Telephone  Company 
to  give  the  relator  a  telephone  and  the  necessary  wires,  the  court  de- 
termined that  telephone  companies  were  controlled  by  the  provisions 

"Tlie  court  in  considering  the  que?-  thus  said,  in  effect,  that  the  mere  fact 
tion  said :  "It  is  urged  that  the  pOAver  tliat  sound  itself  is  transmitted  by  the 
thus  expresslj^  given  to  form  and  organ-  telephone  established  no  material  dis- 
ize  corporations  for  the  purpose  of  tinction  between  telephonic  and  tele- 
building  and  operating  telegraph  lines,  graphic  communications,  as  the  trans- 
or  conducting  the  business  of  telegraph-  mission  if  it  takes  place,  is  performed 
ing  in  any  way,  includes  the  power  of  by  a  wire  acted  on  by  electricity.  It 
forming  and  organizing  corporations  is  there  further  said  that,  of  course,  no 
for  the  purpose  of  building  and  operat-  one  supposes  that  the  legislature  in- 
ing  telephone  lines,  or  conducting  the  tended  to  refer  specifically  to  telephones 
business  of  telephoning  in  any  way.  many  years  before  they  were  invented, 
.  .  .  Tn  that  case  (Atty.-Gen.  v.  Ed.  but  it  is  highly  probable  that  they 
ison  Telephone  Company)  the  court  would,  and  it  seems  to  us  also  that  they 
concluded  that  Edison's  telephone  was  actually  did,  use  language  embracing 
a  telegraph  within  the  meaning  of  the  further  discoveries  as  to  the  use  of  elec- 
telegraph  acts,  although  the  telephone  tricity  for  the  purpose  of  conveying  in- 
was  not  invented  nor  contemplated  telligence."  Wisconsin  Tel.  Co.  v.  City 
wlicn  those  acts  were  passed.       It     is  of  Oshkosh,  62  Wis.  30,  21  N.  W.  828. 


12  TELEGRAPH   AND  TELE^HO^'E   COMPANIES.  [§    8 

of  its  statute,  and  therefore  could  not  withhold  from  one  person  or 
corporation  the  privileges  which  it  conceded  to  another."  ^^ 

§  9.    Same  continued — construction  of  statutes. 

In  the  discussion  of  this  subject,  it  will  be  our  purpose  to  men- 
tion the  nature  of  some  of  the  different  statutes  of  the  various  states 
which  have  bearino-  on  this  point  at  issue  and  how  the  same  have  been 
interpreted  by  the  courts  therein.  It  is  true  that  this  is  no  longer 
much  of  a  controverted  question  as  most  of  the  states  have,  since  the 
invention  and  development  of  the  telephone,  become  so  well  versed 
in  the  nature,  use  and  convenience  of  it,  that  a  greater  portion  of  the 
statutes  therein  now  mention  the  "telephone"  in  cDnneetion  with  the 
"telegraph."  But  there  is  a  rule  of  law  in  the  interpretation  of  a 
statute  which  has  been  amended  by  a  material  change  of  its  language, 
that  this  fact  indicates  an  intent  to  change  the  meaning  of  the  stat- 
ute.^^  So,  the  result  of  the  rule  is  that  where  a  statute  originally 
contained  the  name  "telegi-aph"  and  was  afterwards  amended  so  as 
to  mention  also  the  name  "telephone,"  the  law  flowing  therefrom  was 
materially  changed  and  the  rights  and  privileges  exercised  by  the 
telegraph  company,  under  the  unamended  statutes  could  not  be  en- 
joyed by  the  telephone  companies,  if  such  was  the  intent  of  the  legis- 
lature.^^ 

§  10.    Same  continued — illustrated. 

This  question  was  settled  in  a  case  in  Texas  which  arose  in  a  suit 
instituted  by  a  telephone  company  to  condemn  certain  property  for 
its  right  of  way.  There  were  in  the  general  incorporation  laws  of 
this  state  a  statute  ^^  which  granted  to  telegraph  companies  the  right 
to  condemn  property  for  rights  of  way.  In  another  division  of  the 
original  act,  corporations  might  be  formed  for  "the  constructing  and 
maintenance  of  a  telegraph  line,"  no  mention  being  made  of  the  tele- 
phone. The  first-mentioned  statutes  have  remained  in  force  since 
their  enactment  as  part  of  the  general  incorporation  law,  but  the 

=*Bell  Tel.  Co.  v.  Com.  ex  rel.  Balti-  "San  Antonio,  etc.,  R.  Co.  v.  South- 
more  and  0.  T.  Co.,  59  Am.  Rep.  172  western  Tel.,  etc.,  Co.,  93  Tex.  313,  77 
(Penn.  case).  Am.  St.  Rep.  884,  56  S.  W.  201,  49  L. 

^  James  v.  Patten,  6  N.  Y.  (2  Selden)  K.  A.  459. 

9    55  Am.  Dec.  376.  °' 5  art.  698  and  699,  Laws  1871. 


<^    11]  GENERAL  XATDKE.  13 

provision  for  incorporating  a  telephone  company  was  afterwards 
amended  so  as  to  read,  "'the  construction  and  maintenance  of  a  tele- 
graph or  a  telephone  line,"  which  was  later  changed  so  as  now  to  he 
"the  construction  and  maintenance  of  a  telegraph  and  telephone 
line."  It  will  be  seen  that  in  the  different  changes  of  these  statutes 
whereby  the  telephone  became  an  important  factor,  to  enjoy  some  of 
the  rights  and  privileges  which  were  and  are  enjoyed  by  the  tele- 
gi'aph,  there  is  nothing  said,  in  any  of  these  amended  or  unamended 
statutes  which  gives  the  telephone  tlie  right  to  exercise  the  power  of 
eminent  domain.  The  foremost  and  most  important  question  in 
this  case  was  whether  or  not  the  statutes  that  relate  to  the  exercise  of 
the  right  of  eminent  domain  in  condemnation  proceedings  by  tele- 
graph companies,  apply  to  telephone  companies  and  authorize  a  like 
procedure  by  the  latter.  The  court  held  in  this  case  that  the  phrases, 
"magnetic  telegraph  lines,"  and  "any  telegraph  lines"  found  in  a 
statute  are  broad  enough  to  include  the  "telephone,"  which  is  merely 
another  method  of  communication  by  means  of  electricity,  and 
where  another  statute  confer?^  upon  the  former  the  right  of  eminent 
domain  in  condemnation  proceeding?,  the  same  will  apply  to  tele- 
phone companies. ^^ 

§  11.    Same  continued. 

In  Xew  Jersey,  the  question  arose  as  to  the  validity  of  the  in- 
corporation of  a  telephone  company  to  be  incorporated  under  the 
general  law  which  authorized  the  organization  of  telegraph  com- 
panies without  mentioning  the  term  "telephone"  and  the  right  to  con- 
demn property.  The  original  act  to  incorporate  telegraph  compan- 
ies had  been  amended  similarly  to  the  Texas  statutes  mentioned 
above,  whereby  and  wherein  the  telephone  Avas  mentioned  in  con- 
nection with  tlie  telegi-aph  ])ut  no  changes  had  been  made  in  the  or- 
iginal statute  with  respect  to  the  right  to  exercise  the  power  of  emi- 
nent domain.  The  court  held  in  that  case  that  the  tenn  "telegraph" 
as  used  in  the  statute,  included  "telephone,"  and  that  the  charter 

"  San  Antonio,  etc.,  R.  Co.  v.  South- 
western Tel.  Co.,  93  Tex.,  313,  77  Am. 
St.  Rep.  884,  56  S.  W.  201. 


14  TELEGKAPH   AND   TELEPHONE    COMPANIES.  [<§    11 

granted  to  a  telephone  company,  under  the  general  law  authorizing 
the  incorporation  of  telegraph  companies,  was  valid.^^  The  court 
said  in  its  able  opinion;  "Its  application  to  the  purposes  of  speedy 
transmission  of  intelligence,  was  but  a  change  in  detail,  but  not  in 
substance,  of  the  business  for  which  these  companies  were  clothed 
with  corporate  privileges.  They  are  both  services  of  a  public  na- 
ture which  would  permit  the  legislature  to  confer  the  power  to  con- 
demn for  each  use.  They  are  both  designed  to  convey  intelli- 
gence between  distant  places.  So  far  as  the  owner  over  whose  land 
their  tracks  or  routes  lie,  they  each  are  operated  with  the  same  ap- 
pliances. Poles  and  wires  placed  alike,  impose  exactly  the  same 
sendtude  upon  the  land.  With  the  change  in  the  apparatus  at  the 
termini  telegraphy  becomes  telephony.  The  former  makes  the  dis- 
tant message  intelligible  by  words,  marks,  or  sounds ;  the  latter  by 
sounds  alone.  The  same  electric  fluid  is  the  medium  of  transmis- 
sion, and  all  the  internal  structure  is  the  same  in  both.  The  corpo- 
ration employing  either  means  of  communication  is  executing  sub- 
stantially the  same  public  function  in  substantially  the  same  way. 
The  business  conducted  in  either  way,  is  within  the  purpose  for 
which  the  statute  was  enacted." 

§  12.    Same  continued. 

The  charter  of  the  City  of  St  Louis  gave  the  mayor  and  the  board 
of  aldermen  the  power  to  license,  tax,  and  regulate  telegraph  com- 
panies or  corporations,  and  all  other  businesses,  trades,  avocations, 
or  professions  whatsoever.  The  question  was  settled  there  in  a  case 
in  which  a  telephone  company  was  being  prosecuted  for  violating  a 
certain  city  ordinance  which  attempted  to  regulate  the  charges  of 
the  company.  The  court  held  in  this  case  that  telephone  companies 
were  ejusdem  generis  with  telegraph  companies,  though  the  former 
were  not  in  existence  at  the  date  the  charter  was  granted.^^  There 
are  many  other  statutes  and  cases  both  state  and  federaP^  to  which 

=»  State   V.    Central   New  Jersey  Tel.      9G  Mo.  023,   10  S.  W.   197,  9  Am.  St. 
Co.,  53  N'.  J.  L.  341,  21  Atl.  460.  Rep.  370. 

"City  of  St.  Louis  v.  Bell  Tel.  Co.,  "Cumberland     Tel.     Co.     v.     United 

Electric  Co.,  42  Fed.  273. 


<^    14]  GENERAL  NATURE.  15 

we  could  refer  the  reader  in  verifyinf?  the  fact  that  the  term  "tele- 
graph" in  statutes  means  and  includes  any  apparatus  or  adjustment 
of  instruments  for  transmitting  messages  or  other  communications 
by  means  of  electric  currents  and  signals  and  that  it  is  comprehen- 
sive enough  to  embrace  the  telcphone,^^  but  we  deem  that  enough 
has  already  been  said  on  the  subject. 

§  13.    Same  continued — when  applied. 

There  have  been  different  cases  in  which  the  above  question  has 
been  tested  in  order  to  ascertain  the  different  ways  in  which  the  rule 
might  be  applied.  For  instance,  as  we  said  above,  statutes  author- 
izing telegraph  companies  to  exercise  the  right  of  eminent  domain 
or  to  occupy  highways,  apply  to  telephone  companies.  It  has  been 
held  that  the  same  rule  applied  to  statutes  forbidding  discrimina- 
tion ;  as  where  a  statute  provided  that  telegraph  companies  shall  re- 
ceive dispatches  from  and  for  other  telegraph  lines,  and  from  and  for 
individuals,  and  transmit  them  impartially  and  in  good  faith;  un- 
der these  statutes  a  contract  made  between  a  telephone  company  and 
the  owner  of  the  telephone  instruments  providing  that  the  company 
in  the  use  of  the  instrument  shall  discriminate  as  between  telegraph 
companies,  is  void  as  against  public  policy.^^  The  same  rule  applies 
to  statutes  relating  to  taxation  f^  and  to  those  providing  for  the  in- 
corporation of  such  companies  ;^^  and  to  statutes  fixing  the  locality 
of  suits  against  telegraph  companies. 


32 


§  14.    When  different  rule  obtains — intent  of  law-makers. 

The  rule  that  the  terra  "telegraph"  in  statutes  includes  and  em- 
braces "telephone"  is  not  general,  but  in  order  to  determine  this  fact 

=»Chespeake,   etc.,   Tel.    Co.   v.    Balti-  15.5:    Com.  v.   'West.  Union  Tel.   Co..  2 

more,  etc.,  Tel.  Co.,  G6  ]\Id.  399,  7  Atl.  Dauphin  Co.  Rep.   (Pa.)   30. 

809,  59  Am.  Rep.  167 ;  Roberts  v.  West.  =>'  Duke   v.    Central    New   Jersey   Tel. 

Tel.  Co.,  77  Wis.,  589,  46  N.  W.  800.  Co.,  53  X.  J.  L.  341,  21  Atl.  460;  York 

-'State  V.  Bell  Tel.  Co.,  36  Ohio  St.  Tel.  Co.  v.  Kessey,  5     Pa.    Dist.     366; 

296,  38  Am.  Rep.  583.  Wisconsin  Tel.  Co.  v.  Oshkosh,  62  Wis. 

'«'Iowa  Union  Tel.  Co.  v.     Board     of  328,  21  N.  828. 

Equalization,  67  Iowa  250,  25     N.     W.  «  Franklin  v.    Xorthwostorn  Tel.  Co.. 

69  Iowa  67. 


16  TELEGRAPH    AND    TELEPHONE    COMPANIES.  [§    14 

the  minds  of  the  law-makers  must  be  consulted  to  ascertain  as  to 
whether  or  not  it  was  the  intent  of  this  body  that  the  "telephone" 
was  comprehended  in  the  term  "telegraph."  When,  from  the  cir- 
cumstances or  character  of  the  legislation,  it  is  clear  that  the  inten- 
tion was  otherwise,  as  in  the  case  of  the  Act  of  Congress  giving  tele- 
graph companies  a  right  to  occupy  post-roads,  the  act  does  not  em- 
brace telephone  companies.^^ 

^'  Reckinond  v.  Southern  Bell  Tel., 
etc,  Co.,  ]74  U.  S.  761,  19  S.  Ct.  Rep. 
778. 


CHAPTER  II. 


LEGAL  STATUS  OP  TELEGRAPH  AND  TELEPHONE— AS  TO 

PUBLIC  USE. 

§  15.  Right  of  eminent  domain. 

16.  How  to  be  exercised. 

17.  Telephone  included. 

18.  Accepting  right  of  eminent  domain. 

19.  To  regulate  charges. 

20.  Character  of  property. 

§  15.    Right  of  eminent  domain. 

The  telegraph  is  such  a  public  convenience  as  to  entitle  it  to  exer- 
cise the  power  of  eminent  domain  in  its  behalf.^  The  transmission 
of  intelligence  by  electricity  is  a  business  of  public  character  to  be 
exercised  under  public  control  in  the  same  manner  as  the  transporta- 
tion of  goods  or  passengers  by  railroads.  This  fact  has  been  recog- 
nized by  the  acts  of  Congress,^  and  by  the  decisions  of  both  the 
federal  and  state  courts.^  So  far  as  is  known  to  us,  it  has  not  been 
held  otherwise  anywhere.^  The  conveniences  enjoyed  by  the  public 
from  these  companies  are  as  great  as  those  obtained  from  any  other 
quasi-public  corporation.  The  railroad  companies,  with  all  the  uses 
to  which  they  may  be  applied  in  transporting  goods,  merchandise 
and  other  kinds  of  property ;  and,  also  furnishing  suitable  and  proper 
accommodations,  not  to  be  equaled,  for  any  who  desire  to  travel, 
are  no  more  convenient  and  acceptable  to  commercial  business  than 
those  which  furnish  means  for  transmitting  intelligence.      Congress 

^  Laws    of    Telephones,    10    Am.    St.  ern.  etc.,  Tel.    Co.,    43    N.    J.    L.    381 : 

Rep.  131.  Lackie  v.  Mutual  Tel.  Co.,  103  111.  401 : 

="  March  3.  1863;  July  24,  1866.  Chican;o.  etc.,  Bridge   Co.   v.    Pac.   Mut. 

'Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Tel.  Co.,  36  Kan.  113,  12  Pac.  535;  Tif- 

Co.,    96   U.    S.    1.  fany  v.  U.  S.  Illuminating  Co.,  67  How. 

*  Pierce    et   al.    v.    Drew   et    al.,    136  Pr.    (N.  Y.  Super.   Ct.)    73;   American 

Mass,  75,  57  N.  E.  220,  49  Am.  Rep.  7;  Tel.,  etc.,  Co.  v.  Pearce,  71  Md.  535,  18 

Hockett  V.  State,  105  Ind.  250  ,  5.  N.  E.  Atl.  210,  23  Am.  St.  Rep.  227;  Lewis 

178,  55  Am.  Rep.  201 ;  West  U.  Tel.  Co.  on  Em.  Dom.,  §172;  Mill  on  Em.  Dom., 

V.  Pendleton,  95  Ind.  12,  48  Am.  Rep.  §21. 
692 ;  New  Orleans,  etc.,  R.  Co.  v.  Sonth- 

T.  &  T.— 2.  (!''') 


18  TELEGKAPII   AND    TELEPHONE    COMPANIES.  [§    15 

early  saw  that  they  were  of  such  public  couvenience  and  use  to  the 
g'overnment  and  so  necessary  to  the  progTess  of  our  commercial  in- 
terests, that  it  deemed  them  sufficiently  quasi-public  corporations  to 
be  justified  in  granting  them  the  privilege  of  exercising  the  right  of 
eminent  domain  for  the  purpose  of  acquiring  the  right  to  erect  and 
maintain  their  poles,  wires  and  other  necessary  appliances  over  and 
upon  public  and  private  property.  In  furtherance  of  this  privilege, 
it  passed  the  following  statute:  "'Any  telegraph  company  now  or- 
ganized, or  which  may  hereafter  be  organized  under  the  laws  of  any 
state  of  the  Union  shall  have  the  right  to  construct,  maintain,  and 
operate  lines  of  telegTaph  .  .  .  over  and  along  any  of  the  mil- 
itary or  post  roads  of  the  United  States,  which  have  been  or  may 
hereafter  be  declared  such  by  act  of  Congress,  .  .  .  provided 
said  lines  shall  not  be  so  constructed  as  to  interfere  with  travel"  on 
such  roads;  and  provided,  also,  "that,  before  any  telegraph  company 
shall  exercise  any  of  the  powers  or  privileges  conferred  by  this  act, 
such  company  shall  file  its  written  appearance  with  the  postmaster- 
general  of  the  restrictions  and  obligations  required  by  this  act."  '' 
Most  of  the  states  in  the  Union  have  statutes  similar  in  nature  to 
this.  It  is  not  our  pui-pose  to  leave  the  impression  on  the  reader's 
mind  that  this  statute  is  the  first  instance  of  our  government  regard- 
ing the  transmission  of  intelligence  by  electricity  as  a  business  of 
public  character  and  to  be  exercised  under  the  public  control  in  the 
same  manner  as  the  transportation  of  goods  or  passengers  by  rail- 
road; for  they  have  so  been  considered  almost  as  long  as  they  have 
been  in  use.  They  may  exercise  this  right  in  the  streets,  upon  the 
public  highways,  along  railroads,  through  private  and  public  prop- 
erty, over  navigable  rivers,  or  anywhere  else  necessary  to  carry  out 
the  objects  for  which  they  were  incorporated. 

§  16.    How  to  be  exercised. 

After  a  telegraph  company  has  exercised  the  right  of  eminent  do- 
main and  obtained  the  easement  or  right  of  Avay  on  which  to  plant 
its  poles  and  stretch  its  wires,  it  must  exercise  the  use  thereto  so  as 
not  to  incommode  the  conveniences  and  uses  to  which  it  is  otherwise 

5  July  24,   1866.    - 


^  10] 


LEGAL   STATUS, 


11) 


put,  as  that  of  public  travel.  They  luust  not  erect  their  poles,  piers, 
abutments,  guys,  or  any  other  part  of  their  appliances  necessary  for 
ihe  carrying  on  of  their  business  in  such  a  manner  as  to  be  a  nuisance 
or  subject  ^lersons  or  property  to  danger  therefrom.*^  If  they  should, 
they  will  1m'  liable  in  damages  to  any  one  who  may  be  injured  thereby, 
and  nia\  lie  forced  to  either  remove  such  obstructions  or  abandon 
iheii-  busiuess  at  tlini  |ioiiif.  If  it  is  not  necessary  for  the  comfort 
,iud  ])leasure  of  thof^e  living  near  those  inconveniences,  that  they 
-hould  be  removed,  the  company  will  not  be  compelled  to  remove 
iliem:'  for  the  eonipany  may  be  able  to  carry  on  its  business  at  other 
places  \\here  tlie  same  results  would  not  happen;*  or,  in  a  different 
uianner,  as  by  the  means  of  a  viaduct  placed  beneath  the  surface  of 
rhe  streets  or  highways.''  They  will  not  be  permitted  to  obstruct  the 
ancient  light  M'ith  a  great  bunch  of  wires  stretched  over  and  near  a 
window ;  nor  can  the  inmates  therein  be  compelled  to  be  discomforted 
bv  ffreat  vibratine;  noises  of  these  wires.  Thev  cannot  cut  trees  nor 
limbs  therefrom,  to  any  great  extent,  without  ])ermission  of  the 
owner.      It  i-  verv  seldom  that  a  tree  could  be  cut,  but  there  is  no 


»  Wilson  V.  Oivat  Southern  Tel.,  etc., 
Co.,  0  So.  7S1.  A  license  from  a  city 
to  erect  its  ])ok's  in  and  string  its  wires 
over  the  public  streets  carries  -with  it 
:ni  implied  obligation  to  erect  and  main- 
tain tlieni  in  a  safe  condition,  so  that 
iho'v  will  not  become  nuisances,  or  en- 
danger the  safety  of  the  traveling  pub- 
lic. \\  li-'H  the  wires  fall  into  the  street 
it  is  the  duty  of  the  company  to  re- 
Muivc  ihciii  after  reasonable  notice,  and 
it  is  liat)le  for  injuries  resulting  from 
its  failure  to  do  so.  though  their  fall 
wa.s  occasioned  by  the  weight  of  ico 
produced  by  water  thrown  on  them 
hy  the  city  fire  department  while  ex- 
tinguishing a  fire.  Nichols  v.  ;Minneap- 
nlis,  .3.3  :Minn.  430,  53  Am.  Rep.  56,  23 
N'.  W.  SfiS.  I'nder  the  provision  of  the 
Ohio  statutes,  tliat  a  telephone  company 
may  occupy  for  its  poles  a  part  of  the 
public  liighway.  but  nuist  not  thereby 
ineoniiiiixle  llie  )uiblie.  it   i^  required  to 


exercise  reasonable  care  in  the  locality 
of  its  poles,  but  is  not  required  to  so 
locate  them  as  to  provide  against  all 
possible  injuries  to  travelers.  Sheffield 
v.  Central  U.  Tel.  Co.,  36  Fed.  164.  A 
court  will  take  judicial  notice  that 
telephone  poles  in  a  highway  must  be 
set  near  the  side  thereof,  generally  out- 
side of  the  curb  or  ditch  line,  and. 
therefore,  necessarily  in  line  with  trees 
in  the  highway.  Wyatt  v.  Central  Tel. 
Co..  123  Mich.  51,  81  N.  W.  028.  31 
Am.    St.  Rep.    155,  47   L.   R.   A.   497. 

'  American,  etc.,  Tel.  Co.  v.  Hess.  125 
X.  Y.  641.  21  Am.  St.  Rep.  764.  13  L. 
R.  A.  454n;  Note  to  .Julia  Building 
Assn.  V.  Bell  Tel.  Co.,  51  Am.  Rep.  409. 

*  Cincinnati  Incline  Plane  R.  Co.  v. 
City,  etc.,  Tel.  Assn..  48  Ohio  St.  390, 
29  Am.  St.  Rep.  ."lOO.  12  L.  R.  A.  534. 
27  N.  E.  890. 

•1(1. 


20  TELEGKAPK   AND   TELEPHONE    COMPANIES.  [<^    1(5 

reason  why  small  luidergTOwth  along  the  public  highway  may  not 
be,  provided  the  company  cannot  otherwise  conveniently  erect  its 
poles  and  wires.  As  to  limbs  along  such  highw^ays,  they  may  be  cut 
and  trimmed  sufficiently  to  j)ermit  the  poles  to  be  planted  and  the 
wires  to  be  stretched  without  the  consent  of  the  owner,  but  as  to  such 
cutting  and  trimming  in  towTis  and  cities  the  rule  is  different.  There, 
the  trees  are  considered  not  only  as  an  ornament  but  also  as  a  neces- 
sity for  health.  A  tree  which  might  be  regarded  as  worthless  on  the 
countiy  highw'ay  may  be  very  valuable  to  an  abutting  street  owner. 
It  is  in  some  states  a  criminal  trespass  for  a  telegraph  company  to 
trim  trees  on  the  streets  without  the  consent  of  the  owner,  and  when 
such  is  done,  exemplary  as  well  as  punitive  damages  may  be  recov- 
ered.^" It  is  not  our  purpose  to  mislead  the  reader  in  saying  that 
these  companies  can  cut  and  trim  trees  or  any  kind  of  undergrowth 
on  the  lands  of  private  parties,  for  this  would  be  taking  property 
without  due  compensation,  but  when  the  trees  and  undergrowth  are 
of  little  value  or  nearly  so,  and  the  right  of  way  has  been  acquired, 
they  may  be  removed  wdthout  the  owner's  consent.  So,  if  a  tele- 
phone company  is  given  the  right  to  erect  its  lines  along  a  highway, 
it  must  of  necessity,  have  the  right  to  remove  obstructions.  Hence, 
it  may  in  a  proper  manner,  trim  trees  to  obtain  a  free  passage  for 
its  wires  without  first  giving  the  abutting  owner  an  opportunity  to 
do  such  cutting,  but  the  company  must  answer  for  any  unnecessary, 
improper  or  excessive  cutting. -^^ 


§  17.    Telephone  included. 

All  the  law  which  has  been  heretofore  commented  upon  applies  to 
telephone  companies,  provided  they  are  not  owned  by  private  indi- 


^^  Cumberland  Tel.,  etc.,  Co.    v.    Cas-  Co.    v.    Mackenzie,    28     Am.     St.     Rep. 

sedy,  78  Miss.  666,  29  So.  762.  235;   Pearce  et  al.  v.  Drew  et  al.,  136 

"Wyant  v.   Central  Tel.     Co.,     123  Mass.  75,  49  Am.  Rep.  7;  Laws  of  tel- 

Mich.   51,   81   N.   W.   928,   81    Am.    St.  ephone,  10  Am.  St.  Rep.  139;  San  An- 

Rep.   155,  47  L.  R.  A.   497;    Memphis  tonio,  etc.,  R.  Co.  v.  Southwestern  Tel. 

Bell  Tel.  Co.  v.  Hunt,  84  Tenn.  456,  57  Co.,  93  Tex.  313,  55  S.  W.  117,  77  Am. 

Am.    Rep.    237,    1    S.    W.    159,    Mono-  St.  Rep.  884,  49  L.  R.  A.  459. 
graphic  notes   to   Chespeake,   etc.,   Tel. 


<^    IS]  LEGAL  STATUS. 


21 


viduals.^-  A  telephone  corporation  is,  for  many  purposes,  regarded 
as  a  common  carrier;  and  it  may,  doubtless  like  other  common  car- 
riers, be  authorized  to  exercise  the  power  of  eminent  domain  for  the 
purpose  of  acquiring  the  right  to  maintain  its  poles,  wires  and  other 
necessary  appliances  upon  and  across  private  property.  When  a  stat- 
ute confers  upon  telegraph  companies  the  right  of  eminent  domain 
in  condemnation  proceedings,  the  same,  as  has  been  seen,  applies  to 
telephone  companies  and  authorizes  a  like  procedure. 

§  18,    Accepting  right  of  eminent  domain. 

Whatever  may  be  the  character  of  any  line,  the  owners,  by  accept- 
ing privileges  from  the  public  to  do  certain  acts — as  being  clothed 
with  the  right  of  exercising  the  power  of  eminent  domain — make  it 
such  a  public  use  as  to  place  it  under  obligations  to  the  public  in 
the  same  manner  as  any  other  quasi-public  corporation.  Their  busi- 
ness intimately  concerns  the  public;  and,  on  this  account,  the  gov- 
ernment assumes  and  has  the  right  to  regulate  their  business  so  as 
to  insure  impartiality  of  sen-ice  and  prevent  the  exaction  of  unrea- 
sonable tolls. ^^  They  are  under  obligations  to  the  public  to  have 
skilled  operators,  good  machinei-y  and  serve  all  alike  who  apply  to 
them,  for  the  same  compensation.  The  law  requires  that  their  con- 
tracts shall  be  performed  in  good  faith;  that  their  functions  shall 
l^e  discharged  with  reasonable  care;  and  they  shall  answer  in  dam- 
ages for  losses  and  injuries  that  may  be  traced  directly  or  with  rea- 
sonable certainty  to  their  negligence.^"* 

'=  '-An    individual   may   conduct     any  of  intelligence  is   necessary,  the  postal 

])roper  business  without  legislative  as-  service  of  the  government.     Their  busi- 

sent.  unless  there  has  been  some  legis-  ness   intimately     concerns   the     public, 

lative  restriction  upon   such   right."  A  and,   on   this   account,   the  government 

telephone  may  be  owned  and  conducted  assumes  and  has  the  right  to  regulate 

by  an  individual.     Magie  v.  Overshiner,  their   business   so   as   to   insure   inipar- 

50  Ind.  127,  G5  Am.  St.  Rep.  3G7,  40  L.  tiality  of  service  and  prevent  the  ex- 

R.  A.  370^  49  N.  E.  959.  action  of  unreasonable  tolls."     Reed  v. 

'"They  are  corporations  created  for  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S. 

public    benefit,    endowed    with     special  W.  904,  o8  Am.  Rep.  613,  34  L.  R.  A. 

privileges  such  as  the  right  of  eminent  492. 

domain,   and    perform    important   tunc-  "  West.  U.  Tel.  Co.  v.  Allen.  66  Miss, 

tions  of  commerce  supplanting  in  cases  549,  6  So.  461 ;   note  to  West.  U.  Tel. 

where   celerity   and   rapid   transmission  Co.    v.    Blanchard.    45    Am.    Rep.    486; 


22 


TELEGRAPH    AXD    TEEEPIIOXE    COMPA^'IES. 


[§     11) 


§  19.     To  regulate  charges. 

A  telegraph  or  telephone  company  is  engaged  in  a  business  effected 
with  a  public  interest  within  the  principle  which  authorizes  the  state 
to  regulate  the  charges  of  companies  carrying  on  such  a  business. 
When  the  owner  of  property  devotes  it  to  a  use  in  which  the  public 
has  an  interest,  he  in  effect  gTants  to  the  public  an  interest  in  such 
use  and  must,  to  the  extent  of  that  interest,  submit  to  be  controlled  by 
the  public  for  the  conuiion  good  as  long  as  he  maintains  the  use  to 
which  he  has  so  devoted  his  property ;  he  can  only  escape  such  public 
control  by  withdrawing  his  grant  and  discontinuing  the  use.-^^  But 
when  a  city  charter  gives  the  mayor  and  assembly  the  power  ^'to  li- 
cense, tax,  and  regulate  telegraph  companies,"  the  power  to  regulate 
these  companies  does  not  confer  upon  this  body,  the  power  to  fix  a 
rate  of  charges  by  an  ordinance.  ^*^  The  poles,  wires  and  fixtures  of 
any  telephone  company  may  belong  to  private  individuals,  but  if 
they  put  them  to  a  use  to  which  the  public  has  an  interest,  the  pub- 
lic may  exercise  control  and  authority  over  that  interest. '^'^      It  may 


West.  U.  Tel.  Co.  v.  IMansford.  87  Tenii. 

190,   10  Am.   St.  Rep.  630,  2  L.  R.  A. 

601n;   West.  U.  Tel.  Co.  v.  Cooper,  71 

Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep. 

772,  1  L.  R.  A.  728;  Pepper  v.  Tel.  Co.. 

87  Tenn.  554.  1 1  S.  W.  783,  10  Am.  St. 

Rep.   699,    10   L.   R.   A.   660;    Cutts   v. 

West.   U.   Tel.   Co..   71   Wis.   40.   36   X. 

W.  637. 

^MuTiii    V.    Illinois,    94    U.     S.     113; 

Hockett   V.    State,    105   Ind.   250,   5   N. 

E.  178,  55  Am.  Rep.  201 ;  Chicago,  etc., 

R.  Co.  V.  Iowa,  94  U.  S.  155;  Chica- 
go, etc.,  H.  Co.  V.  Ashley,  94  U.  S.  179; 
Winona,  etc.,  R.  Co.  v.  Blake,  94  U.  S. 
180;  Railroad  Co.  v.  Richmond,  96  U. 
S.  21;  Railroad  v.  Fuller,  17  Wall. 
560;  Olcott  V.  Supervisors,  16  Wall. 
678 ;  Raggles  v.  Illinois,  108  U.  S.  526 ; 
2  S.  Ct.  Rep.  832 ;  Spring  Valley  Water 
Works  V.  Schottles,  110  U.  S.  347,  4 
S.  Ct.  R'3p.  48;  Raggles  v.  People,  91 
111.  256;  1.  C.  R.  Co.  v.  People,  108  U. 
S.  541,  2  S.  Ct.  Rep.  839 ;  Allmit  v.  In- 


glis.  12  :Z.  527:  Mayor,  etc..  of  Mobile 
v.  Yisille.  3  Ala.  137,  36  Am.  Dec.  441; 
New  Jersey  Steam  Xav.  Co.  v.  Mer- 
chants' Bank.  6  How.  343;  Bolt  v. 
Stenett,  8  T.  R.  600;  Com.  v.  Duane, 
98  Mass.  1:  Com.  v.  Alger,  7  Gush.  53; 
Metropolitan  Board  v.  Barrie,  34  N.  Y. 
657 ;  Slaiighter-House  Cases.  16  Wall. 
30;  Shoroless  v.  I'llay.  etc.,  21  Pa.  St. 
147;    Gr.int   v.   Couiier.   24   Barb.   232. 

'"City  of  St.  Louis  v.  Bell  Tel.  Co., 
96  Mo.  023.  9  Am.  St.  Rep.  370,  2  L.  R. 
A.  278n.  A  municipal  corporation  has 
only  such  powers  as  are  expressly 
granted,  and  such  as  are  necessary  to 
carry  into  efliect  those  specially  con- 
ferred, and  such  powers  are  strictly 
construed.  Xot<>  to  McCord  v.  Pike.  2 
Am.  St.  Rep.  92;  Chicago  Gas  Light 
Co.  V.  Peoples'  Gas  Light  Co.,  121  111. 
530,  2  Am.  St.  Rep.  124,  13  N.  E.  169. 

"Magie  v.  Overshiner.  150  Ind.  127. 
(;5  Am.  St.  Rep.  367,  40  L.  R.  A.  370, 
49   X.   E.   950. 


{     I'O]  LEGAL    STATUS.  23 

coutroi  the  cliargx-s  Ix'tween  points  withiu  the  state;  and  this,  too, 
notwithstanding  the  fact  that  the  company  is  carrying  on  interstate 
commerce  ;^^  or  that  the  lines  are  operated  under  a  patent  granted  by 
the  federal  government.  The  charges  cannot  be  defeated  by  an  at- 
tempt to  divide  them  into  two  items,  one  as  a  regular  rental  and 
the  other  as  a  monthly  charge  for  the  use  of  instmment  by  non-sub- 
scril3ers;  nor  can  the  companies  defeat  the  maximum  charges  by 
charging  for  each  conversation  instead  of  charging  a  regular  rental. 

§  20.     Character  of  property. 

It  has  been  held  by  one  court, ^''  that  the  jxjles,  wires  and  lamps  of 
a  telegraph  company  were  real  property ;  but  it  has  been  held  by 
another  court-"  that  the  wires  did  not  change  their  character  by  be- 
ing attached  to  poles  so  as  to  become  part  of  the  realty  and  become 
covered  by  a  pre-existing  mortgage  when  it  was  the  intention  of  the 
])arties  to  remov(>  them  after  a  certain  time.  It  seems  to  us  that  when 
a  wire  is  attached  to  poles  for  the  purpose  of  conducting  intelligence, 
that  it  then  becomes  as  much  the  realty  as  the  poles  themselves.  The 
question  of  intent  hardly  enters  into  the  matter  unless  it  is  openly 
asserted  by  express  agreement,  since  it  is  not  presumed  that  the  wires 
are  constructed  temporarily;  when  this  is  the  case,  it  seems  that  they 
would  be  classed  as  fixtures  and  become  part  of  the  realty.  The  su- 
])reme  court  of  INIississippi  decided  a  case  involving  a  point  similar 
to  this.  In  that  case  the  ])hiintiflF  agreed  to  furnish  an  electric  light 
plant  for  defendants'  boat  uiuK  r  an  agreed  price  if  the  lights  fur- 
nished were  good,  but  they  failed  to  prove  satisfactory  to  the  o^^^lers 
of  the  boat  and  they  refused  to  pay  for  same.  This  suit  was  brought 
to  fasten  a  lien  on  the  boat  for  the  contract  price  as  "material  fur- 
iiislied  alx>nt  the  alteration  or  repairs"  of  said  l>oat.  The  court  held 
that  the  lights  were  essential  to  the  business  in  which  the  boat  was 
engaged,  and  the  articles  supplied  were  intended  as  a  permanent  part 
of  the  boat  ami  were  attached  to  it  and  were  a  part  of  it.-^     A  tele- 

'»r<Mitrnl   I^   Tol.    Co.   v.   Falley.    118  =^  Boston    Safe    Deposit,    etc..    Co..    v. 

hid.    194.    in   Am.   St.   TJep.    114.   19  N.  Bankers,  etc..  Tel.  Co..  36  Fed.  288. 

i:.  600.  -"  ^liplholland    v.    Thompson-Houston 

'"Keatin-r  Imp.  Co.  v.  Marshall  Elec.  Eloc.    Li-lit    Co.,    66    ZMiss.    330,    6    So. 

I.infht.  etc..  Co.,  74  Tex.  60.5.  611. 


24  TELEGRAPH    AKD    TELEPHOA^E    COMPANIES.  [§20 

graph  company  is  an  important  public  agency  and  an  instrument  of 
commerce,  and  is  within  the  rule  of  the  United  States  courts  giving 
a  lien  superior  to  the  mortgage  lien  to  those  who  furnish  labor  or 
materials  to  operate  a  railroad  or  similar  utility.^^ 

^Receiver's   certificate   issued  by  the  by  a  workman  but  grounded  by  him  so 

receiver  of  a  telegraph  company  by  an  as  not  to  be  usable  as  telegraph  lines, 

order  of   the   court,   and   made   a   lien  and  such   lien    is   superior   to  that   of 

upon   all  the   company's   lines   of   tele-  the   workman.      Postal   Tel.    Cable    Co. 

graph,    are   a    lien    upon    wires    strung  v.  Vane,  80  Fed.  961,  26  C.  C.  A.  342. 


CHAPTER  III. 

AS  TO  COMMON  CARRIERS. 

§  21.  Scope  of  chapter. 

22.  Common-law  theories. 

23.  Same  continued — decision  criticised. 

24.  Common-law    theory    continued— distinction    between    these 

and  common  carriers — reasons. 

25.  Common-law  theory  continued— analogy  to  common  carriers 

of  goods. 

26.  Common-law  theory  continued — degree  of  care. 

27.  Common-law  theory   continued — bailees  for  hire— analogy. 

28.  Common-law     theory    continued— quasi-common     carrier    of 

news. 

29.  Common   carriers  continued — law   applicable    to    both    tele- 

graph and  telephone  companies. 

30.  Statutory  theory. 

31.  Common  carriers  in  absence  of  statute  are  not — reason. 

32.  Reasonableness  of  statutes— making  them  common  carriers. 

33.  Statutes  superior  to  any  agreement. 

34.  Beyond  the  limit  of  the  state. 

35.  Substantial  compliance  with  form  of  message. 

36.  Prima  facie  negligence. 

37.  Cannot  exempt  themselves  by  contract. 

38.  Public   servants   must  serve   the  public   impartially   and   in 

good  faith. 

39.  Exception  to  rule. 

40.  Duty  to  forward  message  in  order  of  time  received. 

41.  Should  not  disclose  the  message. 

§  21.    Scope  of  chapter. 

Many  theories  have  been  advanced  as  to  the  legal  status  of  tel- 
egraph and  telephone  companies,  and  as  to  their  analogy  to  common 
carriers  in  order  to  determine  whether  or  not  they  were  insurers  of 
correct  transmission  of  intelligence;  and  whether  they  must  accom- 
modate all,  impartially,  who  apply  to  them  to  perform  such  duties  as 
fall  within  the  scope  of  their  work  after  making  or  offering  to  make 
compensation  for  said  services.  In  considering  this  subject,  we  shall 
discuss:  first,  whether  or  not  they  are  insurers  of  an  accurate  and 
correct  transmission  of  messages;  and,  second,  whether  or  not  they 
must  serve  all  alike  who  npplv  to  them  after  offering  to  comply  with 

(25) 


26  TELEGRAPH    AND    TELEPHONE    COMPA:q^IES.  ['§,    21 

their  reasonable  regulations.  And  under  the  first  of  the  above  divis- 
ion of  the  subject — whether  or  not  they  are  insurers  of  correct  trans- 
mission of  intelligence — we  shall  first  discuss  the  common-law  theory 
and  then  the  statutory. 

§  22.     Common-law  theories. 

The  weight  of  authority  is  almost  unanimous  that  telegraph  and 
telephone  companies,  under  the  common  law,  are  not  common  car- 
riers and.  therefore  insurers  of  a  correct  transmission  of  messages. 
There  are  a  few  opinions  holding  differently  to  the  general  rule/  but 
they  w^ere  decided  at  a  time  when  there  were  few  decisions  on  the 
subject,  and  when  the  same  attention  and  thought  was  not  devoted 
to  the  matter  as  w^as  afterwards  given  to  it.  In  one  of  the  earliest 
courts  of  our  country,  of  which  we  have  any  knowledge,  holding  them 
to  be  common  carriers,  the  presiding  judge  said:  "The  rules  of 
law  which  govern  the  liabilities  of  telegraph  companies  are  not  new. 
They  are  old  rules  applied  to  new  circumstances.  Such  companies 
hold  themselves  out  to  the  public  as  engaged  in  a  particular  branch 
of  business  in  which  the  interests  of  the  public  are  deeply  concerned. 
They  propose  to  do  a  certain  service  for  a  given  price.  There  is  no 
difference  in  the  general  nature  of  the  legal  obligations  of  the  con- 
tract Ix^tween  carrying  a  message  along  a  wire  and  carrying  goods 
or  a  ]iackage  along  a  route.  The  physical  agency  may  be  different, 
hut  the  essential  nature  of  the  contract  is  the  same.  The  breach  of 
contract  in  one  case  or  the  other  is  or  may  be  attended  with  the  same 
consequences ;  and  the  obligations  to  perfonu  the  stipulated  duty  is 


^  The  leading  case    in  support  of  this  Tel.    Co..    1    Dalr    (N.   Y. )    575;    West 

view   is   that   of   Parker   v.    Alia,    etc.,  U.  Tel.  Co.  v.   Buchanan,  35  Ind.  440; 

Tel.  Co.  1.3  Cal.  422,  73  Am.  Dec,  589.  Manville  v.  West.  U.  Tel.  Co.,  37  Iowa 

decided   in    1859.      See   also   McAndrew  218,   11   Am.  Eep.   12.     The  rule  estab- 

V.   Electric   Tel.   Co.,    170.   C.   B.   3,   84  lished  in  California  by  the  Park's  case 

E.  C.  L.  ;':   West.  U.  Tel.  Co.  v.  Meek.  has  been  changed  by  special   statutory 

49   Ind.   53;    Bowen   v.   Lake  Erie   Tel.  provisions,    and    the    authority   of     the 

Co.,  I  Am.  L.  Reg.  685;  West.  U.  Tel.  other    cases    is    weakened    by    the    fact 

Co.   V.   Fontaine,   58   Ga.   433;    True   v.  that   in   most   of   them   what   was   said 

International    Tel.    Co.,    60    Me.    9,    11  about    such    companies    being    insurers 

Am.   Rep.    156;    Bell   v.   Dominion   Tel.  Avas  unnecessarj'  to  the  decision  of  the 

Co.,   25   L.   C.   J.   248;    Bryant  v.   Am.  case. 


^    23]  AS  TO   COM.MUX   CARRIERS.  27 

the' same  in  both  case.-,  the  inipurtauce  of  discharge  of  it  in  both  re- 
spects is  the  same.  In  both  cases  the  contract  is  binding,  and  the 
responsibility  of  the  parties  for  the  breach  of  duty  is  governed  by 
the  same  general  rules."-  There  was  only  one  English  case  decided 
before  the  above,  Avhieh,  only  by  implieation,  can  Ix?  inu\  to  be  author- 
ity for  hdldiiiii'  them  ti>  tlic  lial)ilitv  of  insurers.'' 

§  23.     Same  continued — decision  criticised. 

Sunie  weight  might  havi'  been  attached  to  the  case  above  quoted, 
had  it  been  decided  at  a  time  when  the  facilities  for  transmitting  in- 
telligence by  means  of  electricity  had  been  developed  to  its  present 
state,  M-hen  messages  can  be  sent  without  so  much  risk  of  incorrect 
transmission.  This  state  of  perfection  is  now  almost  complete.  As 
was  very  ably  said  l>y  .Tudge  Bruse,  while  discussing  the  perfection 
to  which  the  science  of  telegraphy  had  attained:  "In  the  ordinary 
course  of  business,  the  newspapers  inform  us,  and  we  have  no  reason 
to  doubt  the  truth  of  the  statement,  telegrams  are  sent  from  jSTew 
"^'ork  to  London,  and  answers  received,  in  about  thirty-three  minutes, 
tliey  having  passed  thrcMigh  thirty-six  different  hands,  and  traveled 
over  seven  thousand  miles.  This  is  done  every  day,  such  is  the  per- 
fection to  which  tile  art  is  brought.  Does  an  instrumentality  which 
can  perfonn  such  feats  require  the  fostering  care  of  courts  ?  Is  it 
an  infant  yet  in  its  swaddling  clothes  ?  Xo,  but  a  giant  power,  under 
the  control  of  man,  whose  daily  exploits,  guided  by  care  and  skill, 
throw  those  of  the  fabled  Mercury  deep  into  the  shade  and  far  in  the 
rear."^  With  the  skilled  operator  and  the  imi)roved  machinery  which 
we  now  June,  it  is  almost  impossible,  without  the  company's  negli- 
gence, to  fail  in  transmitting  messages  correctly.  But  during  the 
time  of  this  decision,  the  science  of  telegraphy  was  not  perfect  by 
any  means.  Tlie  scientist  had  not  learned  how  to  guard  against  the 
atmos]iheric  disturbances:  the  a]i]'>aratuses  necessary  to  transmit  in- 

'  Parks  \.   Alta  etc.  Tel.   Co..    13  Cnl.  tho    Park's    case,    the    only    case    to    be 

422.  73  Am.  Dec.  589.  found    in    which    telegraph     companies 

'  Afac Andrews  v.  Electric  Tel.  Co.,  17  have    been    expressly   held    to    be    coni- 

Com.  B.  84.  Enir.  Com.  L.  3,  decided  in  nion  carriers,  and  subject  to  the  same 

England  in   1855.     This  case  hv  im]>li-  severe  rule  of  responsibilit.v. 

cation,  only  can  be  said  to  be  auliiority  *  West.    V.   Tel.   Co.    v.   Tyler.    74    111. 

iif  insurers.     This  case  was  followed  by  IdS.  24  Am.  l\cp.  iSl. 


28  TELEGRAPH    A:srD    TELEPHONE    COMPANIES.  [§    23 

telligence  were  crude  and  imperfect  and  the  operators  were  very  un- 
skilled in  the  management  of  the  machines.  Why  this  learned  judge 
could  say  under  these  circumstances  that  they  were  insurers  of  cor- 
rect transmission  of  intelligence  is  to  be  answered  by  saying  that  his 
reasons  on  this  subject  were  similar  to  the  science  of  telegraphy  ai 
that  time — very  imperfect.  There  is  no  doubt  but  that  this  court  was 
somewhat  misled  by  the  English  case  cited. 

§  24.     Common-law  theory  continued — distinction    between    these 
and  common  carriers — reasons. 

The  telegrajDh  and  telephone  companies  are  not  common  carriers 
and  so  insurers  of  a  correct  transmission  of  messages,  yet  they  are  lia- 
ble for  failure  to  exercise  due  care  in  making  such  transmissions.  The 
public  is  interested  in  them  and  must  control  the  way  in  which  they 
carry  on  their  business  to  the  extent  of  seeing  that  the  confidence 
reposed  in  them  by  the  public  is  exercised  impartially  with  the  same 
care  and  diligence  which  any  one  would  use  under  like  circumstances. 
While  they  are  not  common  carriers,  in  the  strict  sense  of  the  term, 
they  are  engaged  in  a  business,  almost  if  not  quite,  as  important  to 
the  public  as  that  of  carriers.^  Messages  which  are  transmitted  by 
means  of  electricity  are  sometimes  as  valuable  to  the  sender  as  the 
goods  which  he  transports  by  the.  common  carrier,  but  the  chances 
which  the  latter  has  over  the  former  in  caring  for  the  goods  during 
transit  are  far  superior  to  that  of  the  former  in  controlling  the  mes- 
sages. The  common  carrier  has  an  opportunity  of  seeing  what  hap- 
pens to  the  goods  in  his  charge  at  the  moment  it  happens.  But  a 
telegraph  company,  owing  to  innumerable  causes,  which  may  dis- 
turb the  security  of  the  lines,  would  be  as  often  open  to  liability  be- 
cause of  the  acts  of  providence,  unknown  to  it,  as  for  any  other  reason. 
The  common  carrier  has  the  tangible  property  and  is  more  capable  of 
insuring  its  protection  while  in  its  care  than  the  telegraph  and  tele- 
phone companies  have  of  insuring  the  safety  and  correctness  of  the 
intangible  property  of  a  message  which  is  being  transmitted  over 
their  wires  and  almost  constantly  coming  in  contact  with  atmospheric 

^Hockett  V.  state,  105  Ind.  2,50,  5  N.  Tel.  Co.  v.  Pendleton,  95  Ind.  12,  48 
E.    178,    55    Am.    Rep.    201;    West.    U.       Am.   Rep.   692. 


^  25] 


AS  TO  COMMON   CARRIERS. 


29 


hindrances."  For  this  reason,  the  common  law  does  not  hold  the 
telegraph  companies  to  the  same  strictness  of  insurers  over  the  cor- 
rect transmission  of  messages  which  it  places  on  common  carriers 
over  the  goods  intrusted  to  the  latter's  care.  The  one  is  liable  only 
when  it  fails  to  exercise  due  care,  or  when  it  becomes  negligent;  while 
the  other  is  always  liable  for  the  loss  of  all  or  any  part  of  the  goods, 
unless  the  same  has  been  caused  by  act  of  the  parties,  of  the  public 
enemy,  or  by  the  act  of  God. 


§  25.     Common-lav^''  theory  continued- 
riers  of  goods. 


-analogy  to    common    car- 


The  true  rule  is  that  the  status  of  telegraph  companies  is  analogous 
to  common  carriers  in  their  obligations  to  serve  the  public  in  good 
faith  and  impartially.'^  But  they  are  not  insurers  of  a  correct  trans- 
mission of  messages  turned  over  to  them,  as  carriers  are  for  prop- 
ertv  intrusted  to  them  for  carriaffe.^     This,  then,  is  the  analogy  be- 


'The  liability  of  a  telegraph  com- 
pany for  error  or  failure  in  the  trans- 
mission of  a  dispatch  is  quite  unlike 
that  of  a  common  carrier.  A  telegraph 
company  is  intrusted  with  nothing  but 
an  order  or  message,  which  is  not  to 
be  carried  in  the  form  in  which  it  is 
received,  but  it  is  to  be  transmitted  or 
repeated  by  electricity  and  is  peculiar- 
ly liable  to  mistake;  which  cannot  be 
the  subject  of  embezzlement;  which  is 
of  no  intrinsic  value;  the  importance 
of  which  cannot  be  estimated  except  by 
the  sendtM-,  nor  ordinarily  disclosed  by 
him  without  danger  of  defeating  his 
own  purpose;  which  may  be  wholly 
valueless  if  not  forwarded  immediate- 
ly; for  the  transmission  of  which  there 
must  he  a  simple  rate  of  compensation; 
and  the  jneasure  of  damages,  which  has 
no  relation  to  any  value  which  can  be 
put  on  the  message  itself.  Grinwell  v. 
West.  U.  Tel.  Co.,  113  Mass.  299,  18 
Am.  Rep.  485. 

Klillis  \.  West.   U.  Tel.  Co..  61  Vt. 
461,   17   Atl.  736,  15  Am.  St.  Rep.  917, 


4  L.  R.  A.  61  In;   West.  U.  Tel.  Co.  v. 
Rej-nolds,    77    Va.    173.    46    Am.    Rep. 

715. 

*  "The  current  of  authority  is  not  in 
this  direction,  and  properly  so,  because 
the  transmission  of  messages  is  neces- 
sarily subject  to  the  risk  of  mistake 
and  interruption.  The  same  is  exposed 
to  the  interference  of  strangers;  a  sur- 
charge of  electricity  in  the  atmosphere, 
or  a  failure  of  or,  an  irregularity  in 
the  electrical  current,  may  stop  com- 
munication; and  it  is  continually  sub- 
ject to  dangers  from  accident,  malice 
and  climatic  influence  when  the  com- 
pany has  not  the  immediate  custody  of 
the  messages  as  the  common  carrier 
has  of  the  merchandise  it  carries;  and 
it  should  not,  therefore,  like  a  common 
carrier,  be  treated  not  only  as  a  bailee 
but  as  an  insurer."  Smith  v.  West.  U. 
Tel.  Co.,  S3  Ky.  104,  4  Am.  St.  Rep. 
126.  See  also  Little  Rock,  etc.,  Tel.  Co. 
v.  Davis.  41  Ark.  79;  Hart  v.  West. 
U.  Tel.  Co.,  66  Cal.  579,  59  Am.  Rep. 
110.  6  Pac.  637    (rule  changed  by  civil 


30 


TELEGRAPH    AND    TELEPHONE    COMPANIES. 


[§  25 


tween  comniou  carriers  of  goods  and  telegraph  companies.  The  one 
is  an  insurer  of  goods  intnisted  to  it  under  all  circumstances,  ex- 
cept such  losses  as  may  be  caused  bv  the  act  of  God  or  the  public 
eneniY ;  while  the  telegraph  companies,  in  the  absence  of  a  contract 
or  regulations  modifying  their  liability,  do  not  insure  absolutely  the 
safe  and  accurate  transmission  of  messages,  but  are  only  required  to 
exercise  due  care  and  diligence  in  all  their  work,  and  Avill  be  liable 
only  for  the  negligence  of  their  agents.'^  It  seems  to  us  that  the  anal- 
ogy between  common  carriers  of  passengers  for  hire  and  telegraph 
companies  is  stronger  than  that  between  the  latter  and  common  car- 
riers of  goods. ^"  Cai-riers  of  passengers  are  not  insurers  of  the 
safety  of  their  passengers ;  nor  are  they  liable  for  injuries  to  their 


code,  §§21G2,  2168)  :  West.  U.  Tel.  Co. 
V.  Hyer.  22  Fla.  637,  1  Am.  St.  Rep. 
222,  1  So.  129;  Cen.  U.Tel.  Co.  v.  Brad- 
bury, 106  Ind.  1,  5  N.  E.  721;  Tyler 
V.  West.  U.  Tel.  Co.,  60  III.  421,  14 
Am.  Rep.  38 ;  Sweatland  v.  Illinois,  etc. 
Tel.  Co.,  27  Iowa  458,  1  Am.  Rep.  285; 
Aiken  v.  West.  U.  Tel.  Co.,  69  Iowa  31, 
2S  X.  W.  419,  58  Am.  Rep.  210;  Comp 
V.  West.  U.  Tel.  Co.,  1  Mete.  (Ky.) 
164,  71  Am.  Deo.  461;  Fowles  v.  West, 
r.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6 
Am.  St.  Rep.  211  ;  Bartlett  v.  West.  U. 
Tel.  Co.,  62  :\Ie.  209,  16  Am.  Rep.  471; 
Birney  v.  Xew  York,  etc.  Tel.  Co.,  18 
Md.  341,  81  Am.  Dec.  607;  Grimwell 
V.  West.  U.  Tel.  Co.,  113  Mass.  299, 
18  Am.  Rep.  485;  West.  U.  Tel.  Co. 
V.  Carew,  15  Mich.  525;  W^ane  v.  West. 
U.  Tel.  Co.,  37  Me.  472,  90  Am.  Dec. 
395;  Leonard  v.  New  York,  etc.  Tel. 
Co..  41  X.  Y.  544,  1  Am.  Rep.  446; 
DeRutte  v.  New  York,  etc.  Tel.  Co.. 
1  Daly  (K  Y.)  547,  30  How.  Pr.  (N. 
Y.)  403;  Schwartz  v.  Atlantic,  etc. 
Tel.  Co.,  18  Hun.  (X.  Y.)  157;  West. 
U.  Tel.  Co.  V.  Griswold,  37  Ohio  St. 
310,  41  Am.  Rep.  500;  New  York,  etc. 
Print  Co.  v.  Dryburg,  35  Pa.  St.  298, 
78  Am.  Dec.  338 ;  Passmore  v.  West.  U. 
Tel.  Co.,  78  Pa.  St.  238;  Aiken  v.  West. 


U.  Tel.  Co..  5  S.  Car.  358:  West.  U. 
Tel.  Co.  V.  Xeill.  57  Tex.  283.  44  Am. 
Rep.  589;  West.  U.  Tel.  Co.  v.  Edsall, 
63  Texas  668;  Washington,  etc.,  Tel. 
Co.  V.  Hobson,  15  Grett  (Va.)  122; 
Hibbard  v.  W'est.  U.  Tel.  Co..  33  Wis. 
471.  17  Am.  Rep.  452;  Abraham  v. 
West.  U.  Tel.  Co.,  23  Fed.  315,  11  Saw- 
yer (U.  S.)  28;  Southern  Ex.  Co.  v. 
Caldwell,  2  Wall.  (U.  S.)  269;  Baxter 
V.  Dominion  Tel.  Co..  37  W.  C.  Q.  B. 
470.  See  also  Gray  on  Telegraphs,  §8; 
Thompson  on  Electricity,  §138;  Ellis 
V.  Am.  Tel.  Co.,  13  Allen   (Mass.)    232. 

» Fowler  v.  West.  U.  Tel.  Co.,  80  Me. 
.381,   15   Atl.   29,   6  Am.   St.   Rep.   211. 

'*  It  was  said  on  this  subject,  that : 
"Although  there  may  be  no  analogy  be- 
tween the  business  of  telegraph  com- 
])anies  and  that  of  public  carriers  of 
passengers,  for  hire,  yet  \ve  regard 
their  legal  statutes  as  practically  the 
same.  Both  are  engaged  in  a  business 
(if  a  pubic  nature.  Both  sei-ve  all  who 
come.  Neither  are  insurers,  or  liable 
as  such,  but  both  are  liable  for  negli- 
gence." Gillis  V.  West.  U.  Tel.  Co.,  61 
Vt.  461,  17  Atl.  736,  15  Am.  St.  Rep. 
017;  Fowler  v.  West.  U.  Tel.  Co.,  80 
Me.  381,  15  Atl.  29,  6  Am.  St.  Rep. 
211;    Gray  on  Telegraph,   §11.  note. 


(^    26]  AS   TO    COMMON    CARRIERS. 


31 


passengers  resulting  from  such  defects  in  their  buiUlings  or  means 
of  transportation  as  could  not  have  been  guarded  against  by  the  exer- 
cise of  care  on  their  part ;  nor  for  injuries  caused  by  an  act  of  God, 
without  negligence  oti  the  carrier's  part.  But  when  the  carrier  has 
been  in  any  rc.sjK-ct  negligent,  the  concurrence  of  an  act  of  God  in 
causing  ihc  injiu-y  will  not  relieve  the  carrier  from  responsibility. 
Kor  are  caiTiers  to  be  held  liable  for  injuries  caused  without  fault 
on  their  part  by  an  act  of  the  public  enemy ;  nor  to  injuries  caused 
by  inevitable  accident,  not  due  in  any  way  to  negligence  on  the  part 
of  the  carrier  and  such  as  no  human  foresight  on  his  part  could 
avert.  The  same  rule  applies  to  telegraph  companies.  They  are 
both  engaged  in  a  business  of  a  public  nature,  both  must  serve  all  who 
(.ome — neither  are  insurers  nor  liable  as  such,  but  both  are  liable  for 
negligence.^' 

§  26.     Common-law  theory  continued — degree  of  care. 

As  telegraph  companies  are  liable  only  for  failure  to  exercise  due 
care  in  transmitting  intelligence,  it  might  be  proper  to  examine  the 
true  meaning  of  the  phrase  ''due  care ;"  and  in  doing  so  it  gives  us 
very  much  pleasure  to  refer  the  reader  to  the  very  learned  and  able 
opinion  of  Judge  Danforth  on  this  question,  when  he  said,  that:  "To 
require  a  degTce  of  care  and  skill  commensurate  with  the  impor- 
tance of  the  tnist  reposed  is  in  accordance  with  the  principles  of 
law  applicable  to  all  undertakings  of  whatever  kind,  whether  pro- 
fessional, mechanical,  or  that  of  conmion  labor.  There  is  no  reason 
why  the  business  of  sending  messages  by  telegTaph  should  be  made 
an  exception  to  the  general  riile.  Thi^^  requires  skill  as  well  as 
care.  If  the  work  is  difficult,  greater  skill  is  required.  It  is  often 
necessary  to  intrust  to  this  mode  of  communication,  matters  of  great 
moment,  and  therefore  the  law  requires  great  care.  It  is  necessary 
to  use  instruments  of  a  somewhat  delicate  nature  and  accurate  adjust- 
ment, and  therefore  they  must  be  so  made  as  to  be  reasonably  suffi- 
cient for  the  ]->\irpose.  The  company  holding  itself  out  to  the  public 
as  ready  au<l  willing  to  transmit  messages  by  thi:^  means,  pledges  to 

"West.   I^   Tel.   Co.   v.   Reynolds.   77 
Ya.    17.3.    Mi   Am.    Kop.    722. 


32  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [§26 

that  public  the  use  of  instruments  proper  for  the  purpose,  and  that 
degree  of  skill  and  care  adequate  to  accomplish  the  object  proposed. 
In  case  of  failure  in  any  of  these  respects  the  company  would  un- 
doubtedly be  liable  for  the  damage  resulting.  This  would  not  impose 
any  liability  for  the  want  of  skill  or  knowledge  not  reasonably  at- 
tainable in  the  present  state  of  the  art,  nor  for  errors  resulting  from 
the  peculiar  and  unlcnown  condition  of  the  atmosphere  or  any  agency 
from  whatever  source,  which  the  degree  of  skill  and  care  spoken  of  is 
insufficient  to  guard  against  or  avoid."  ^- 

§  27.     Common-law  theory  continued — ^bailees   for   hire — analogy. 

There  are  some  few  cases  which  have  assigned  telegraph  companies 
to  the  category  of  bailees  for  hire.^^  The  argument  is  that  as  the 
ground  of  their  liability  is  the  same  as  that  of  bailees,  the  legal  status 
of  the  two  must  be  the  same.  But  this  doctrine  is  justly  criticised,  be- 
cause telegraph  companies  are  engaged  in  a  business  of  a  public  na- 
ture and  are  precluded  by  rights  and  duties  incident  thereto  from  oc- 
cupying the  legal  status  of  an  ordinary  bailee  for  hire,  whose  rights 
and  duties  arise  wholly  from  the  contract  of  employment.^*  A  bailee 
for  hire,  is  any  one  who  has  the  absolute  right  to  contract  with  any  one 
with  whom  he  may  see  fit  and  to  be  controlled  by  the  contract  made 
with  such  party. ^^  The  compensation  under  the  contract  of  bailment 
for  hire  may  not  be  the  same  at  all  times,  nor  the  same  made  with  all 
persons.  The  bailor  is  not  a  public  servant  nor  controlled  by  the 
public.     While  on  the  other  hand,  telegraph  companies  are  engaged 

"Bartwell  v.  West.  U.  Tel.  Co.,  62  Neb.    280,    68    N.    W.    496;    Harris   v. 

Me.  209,   16  Am.  Rep.  447.  Howard,  56  Vt.  695;  Walker  v.  York, 

«  Bem'ey  v.  New  York,  etc.,  Tel.  Co.,  etc.,  R.  Co.,  2  C.  L.  R.  237,  2  E.  &  B. 

18  Md.  341,  81  Am.  Dec.  607;   Smith-  750,  18   Tiir.  143,  23  L.  J.  Q.  B.  73,  2 

son   V.    U.    S.    Tel.    Co.,    29    Md.    162;  Wkly.  Rep.   11,  75  E.  C.  L.  750;  Van 

Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  Toll  v.  Southeastern  R.  Co.,   12  C.  B. 

71     45   Am.   Rep.    765;    West.   U.   Tel.  N.  S.  75,  8  Jur.  N.  S.   1213,  31  L.  J. 

Co'  V.  Fontaine,  58  Ga.  433.  C.  P.  241,  6  L.  T.  Rep.  N.  S.  244,  10 

"Gillis  V.  West.  U.  Tel.  Co.,  61  Vt.  Wkly.  Rep.  578,  104  E.  C.  L.  75.  A 
461,  17  Atl.  736,  15  Am.  St.  Rep.  917 ;  special  contract  prevails  against  gen- 
West.  U.  Tel.  Co.  V.  Blanchard,  68  Ga.  eral  principles  of  law  applicable  in  the 
299,  45  Am.  Rep.  480.  absence  of  express  agreements.    Butler 

'» White  V.  Phelps,  14  Minn.  27,  100  v.   Greene,  above  cited. 
Am.    Dec.    190;    Butler    v.    Greene,    49 


^    28]  AS  TO  COMMON  CARRIERS.  33 

in  a  business  of  a  i)iiblic  nature  and  must  serve  all  who  apply  to 
them  after  the  former  have  complied  Avith  their  reasonable  rules  and 
regulations.  They  are  controlled  by  the  public  and  are  liable  to  the 
sender  of  the  message  on  account  of  any  special  contract  which  may 
have  been  mafic  with  him  but  are  only  liable  for  negligence  or  undue 
cai-e  in  transmitting  the  message. 

§  28.     Common-law  theory   continued — quasi-common    carrier    of 
news. 

There  is  a  late  decision  holding  that  telegraph  and  telephone  com- 
panies are  quasi-common  carriers  of  news  and,  as  such,  bound  to  sup- 
ply all,  who  arc  in  like  circumstances,  alike  with  similar  facilities, 
under  reasonable  limitations  and  without  any  discrimination.^®  In 
<uir  opinion  this  is  the  closest  relation  they  have  to  common  carriers, 
and  in  this  they  are  not,  strictly  speaking,  common  carriers  in  that 
they  are  not  insurers ;  but  the  care  required  of  them  in  the  transmis- 
sion of  news  becomes  more  closely  guarded.  As  time  advances,  im- 
])rovements  on  electrical  transmission  of  news  are  being  rapidlymadt . 
We  are  approaching  perfection  in  the  art  of  telegraphy  as  the  days 
pass,  and  it  will  only  be  a  short  time  until  the  facilities  for  tran-^- 
mitting  news  will  be  even  better  and  safer  than  for  the  transportation 
of  goods  by  common  carrier. ^'^  When  this  time  comes — if  it  should 
ev^er — there  is  no  reason  Avhy  the  same  stringent  laws  which  are  appli- 
cable to  common  carriers  should  not  be  applied  witli  equal  force  and 
in  every  particular  to  these  companies;  and  when  they  are,  of  course 
tliey  will  then  fall  under  the  head  of  common  carriers.  The  consti- 
tution and  statutes  of  some  of  the    states    are    now    declaring   them 

'"  Stato    V.    Cili/en's    Tel.    Co.,    01    S.  roach    its    destination,    no    atmospherio 

C.  83,   3!)   S.   E.   257,  85   Am.   St.  Eep.  causes  intervening  to  prevent.  The  very 

870.   55  L.  Iw  A.   139.  fact   that   but    for    cases   of   negligence 

'■Judge  liruce  very  ably  said:    "Tlie  have  been   brought   against  these   com- 

undertaking  of   the   company   is   prima  panics   is  strong  proof  they  do,   in  al- 

facie,  to  rend  it  correctly,  and  if  tlieir  most  all   cases,  transmit  messages  cor- 

wires  and  instruments  are  in  proper  or-  rectly,   and   they   can   always   do   it.    if 

<ier  and  their     operators  skillful     and  they  take  proper  care  to  have  requisite 

careful,  it  will  traverse  the  wires  pre-  skill    and     use     proper     instruments.'" 

cisely   in  the   words  and  figures   which  West.  U.  Tel.  Co.  v.  Tyler,  71  Til.   lOS. 

coinpased  it  wlieii  jdaced  upon  the  wire  04  \j,,    'Rep.  280. 
and  is  sure  in  that  shape  and   form  to 
T.  &  T.— 3 


34  TELEGRAPH  AND   TELEPHONE   COMPANIES,  [>§,    28 

common  carriers,  but  if  such  improvements  are  made  on  them  as  men- 
tioned above,  it  will  not  be  necessaiy  for  such  laws  to  be  enacted  by 
the  states,  for  thev  will  be  considered  as  common  carriers  without  such 
laws.  We  do  not  desire  the  readers  to  understand  us  as  saying  that 
they  are  common  carriers,  or  ever  will  be,  in  the  absence  of  a  statute 
declaring  them  to  be  such;  but  Ave  do  say  that  if  the  improvements 
in  the  methods  of  transmitting,  intelligence  continues  to  develop  for 
the  next  thirty  years  as  they  have  during  the  last  ten,  they  will  be 
at  such  a  state  of  perfection  as  will  induce  the  courts  to  throw  around 
them  the  same  stringent  and  rigid  mles  in  the  enforcement  of  that 
degree  of  care  in  the  transmission  of  intelligence  as  are  now  applica- 
ble to  common  carriers,  thereby  causing  them  to  be  insurers  to  a  cer- 
tain degree  and  therefore  making  them  nothing  less  than  common 
carriers. 

§  29,     Common  carriers  continued — law  applicable    to    both    tele- 
graph and  telephone  companies. 

The  same  law  which  has  been  discussed  in  regard  to  common  car- 
riers, is  equally  applicable  to  both  telegraph  and  telephone  companies. 
The  fact  that  different  means  are  used  in  the  transmission  of  intel- 
ligence over  telegraph  and  telephone  companies,  does  not  make  them 
different  in  nature.  In  both  instances,  the  intelligence  or  message 
is  actually  transmitted  by  the  use  of  agencies  and  instrumentalities 
furnished  either  by  the  telegraph  or  the  telephone  company,  for 
which  they  are  entitled  to  receive  proper  compensation ;  and  one  is 
just  as  much  engaged  in  the  business  of  trangmitting  intelligence 
for  hire  as  the  other.  Both  are  devices  by  which  one  person  is  en- 
abled to  communicate  w^ith  another  beyond  the  reach  of  the  human 
voice,  unaided  by  some  artificial  appliance ;  and  although,  there  are 
some  differences  in  the  mode  of  transmitting  intelligence,  yet  the  end 
sought  and  attained  by  each  is  substantially  the  same.^^  The  rule  is 
not  changed  by  reason  of  the  fact  that  the  agent  of  one  company  oc- 
cupies a  position  in  which  he  may  more  often  be  apprised  of  the  con- 
tents of  the  message  than  the  agent  for  the  other ;  for  in  either  case, 

'« State  V.  Citizen's  Tel.  Co.,'  Gl  S. 
C.  83,  39  S.  E.  257,  55  L.  R.  A.  139, 
85  Am.  St.  Rep.  870. 


^    30]  AS  TO   COMMON   CAKKIERS.  35 

the  agents  may  be,  and  are  very  often,  deprived  of  a  means  of  ascer- 
taining the  contents  of  a  message.  ^'^ 

§  30.     Statutory  theory. 

Having  discussed  at  some  length  the  analog)'  of  telegraph  and  tel- 
ephone companies  to  common  carriers,  as  considered  under  the  com- 
mon law,  it  shall  now  be  our  purpose  to  say  something  of  the  changes 
which  the  statutes  of  some  of  the  states  have  made  with  respect  to 
this  subject;  and  in  doing  so,  we  shall  endeavor  to  make  the  discus- 
sion more  brief  than  under  the  former  head,  or  the  common  law 
theory.  In  fact  the  most  that  is  said  under  this  title  is  the  result 
of  siicli  thoughts  as  may  be  advanced  by  the  writer,  on  account  of 
the  statutory  changes  of  the  common  law  theory  being  mostly  of  re- 
cent enactment,  and,  for  which  reason,  few  cases,  in  which  the  ques- 
tion is  considered,  are  found  in  the  reports.  It  is  held  by  almost  a 
unanimity  of  decisions,  that  telegraph  and  telephone  companies  arc 
common  carriers  and  liable  as  such  only  under  statutes  in  which  they 
are  so  declared.  And  it  is  a  pleasure  to  note  the  fact  that  most  of 
the  states  have,  or  are  enacting  statutes  which  declare  them  common 
carriers:  and  yet,  we  could  not  have  made  this  statement  several 
years  ago  when  the  science  of  telegraphy  was  in  its  infancy,  but  after 
these  many  years  of  improvement  and  development  of  the  art,  we  feel 
prone  to  change  with  the  times  and  conditions  respecting  same.^** 
While  the  general  rule,  practiced  by  the  courts  of  our  country  in  pas- 
sing on  issues  of  law  presented  to  them  for  their  consideration,  is, 
that  they  arc  to  be  controlled  to  a  great  extent  by  former  decisions, 
customs  and  usages;  yet  we  do  not  feel  constrained  to  follow  this 
rule  in  every  particular.  However,  it  is  very  unsafe  and  im])roper 
to  depart  from  these  old  usages  whenever  the  time  to  do  so  will  not 
])crmit,  but  in  an  era  of  progress,  as  we  now  live  in,  there  must  be 
changes  in  those  laws  to  meet  the  needs  and  conditions  of  the  times, 
and  yet  this  is  seldom  done,  except  by  legislation.  A  law,  either 
common  or  statutory,  which  was  sufficient  to  meet  all  the  demand:? 
of  a  good  government  twenty,  or  may  be  not  so  many  years  since,  may 

-•State    V.    Citizen's   Tel.    Co.,    above  =»  West.  U.  Tel.  Co.  v.  Tyler,  74  II!. 

cited.  1G8,  24  Am.  Rep.  270. 


36  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [<§    30 

be  wliolly  iuadequate  for  the  general  welfare  of  society  now  and 
should  therefore  be  changed  accordingly.  There  has  been  such  an 
improvement  in  the  method  of  transmitting  messages  by  electricity 
that  the  common-law  theory  with  respect  to  the  legal  status  of  tele- 
graph companies  should  be  amended  by  statutoiy  laws.  They  have 
become  as  equally  important  to  the  commercial  interest  of  the  world 
as  that  of  any  common  carrier  of  goods.  They  are  agents  of  the 
government  and  have  the  power  of  exercising  the  right  of  eminent 
domain,  without  which,  they  could  not  invade  the  private  property 
of  an  individual  w^ithout  his  consent.  With  all  these  privileges 
granted  by  the  government,  and  the  almost  perfect  control  over  the 
art  of  telegraphy  by  the  late  and  modern  improvements,  it  is  but 
fair  and  just  that  they  be  placed  under  almost  if  not  the  same  restric- 
tions as  that  which  the  common  law  imposes  on  common  carriers. 

§  31.    Common  carriers  in  absence  of  statute  are  not — reason. 

Telegraph  and  telephone  companies  are  not  common  carriers  in  the 
absence  of  statutes  making  them  such.^^  And  yet,  there  seems  to  be 
a  misun'derstanding  among  a  few  of  the  courts  on  this  subject,  and 
this,  too,  in  the  absence  of  statutes.  These  courts  fail  to  see  that  in 
order  to  be  liable  as  common  carriers,  they  must  be  insurers  of  a  cor- 
rect transmission  of  messages  as  well  as  to  serve  all  impartially  who 
apply  to  them.  If  it  were  not  necessary  under  the  common  law  for 
them  to  be  insurers  of  a  correct  transmission  in  order  to  be  liable  as 
common  carriers,  then,  as  a  matter  of  fact,  it  would  not  be  necessary 
for  statutes  to  be  enacted  declaring  them  common  carriers;  for  it  is 
held  by  the  common  law  that  they  are  so  much  like  common  carriers 
as  that  they  must  serve  the  public  in  good  faith  and  impartially. 
They  are  insurers  of  a  correct  transmission  of  messages  only  when 
they  fail  to  exercise  due  care  in  the  transmission,  and  in  order  to 

"Birkett  v.   West.   U.   Tel.    Co..    10.3  868,    38     Am.     Rep.     356:     Lassier    v. 

Mich.  361,  61   N.   W.   645.   .50  Am.   St.  West.  U.  Tel.     Co.,     89     N.     C.     334; 

Rep.   374,   33   L.   R.   A.   404;    Kiley   v.  United  States  Tel.  Co.   v.  Gildersleeve, 

West.  U.  Tel.  Co.,  109  N.  Y.  231;  Red-  29  Md.  232,  96  Am.  Dec.  519;  Hart  v. 

path   V.   West.   U.   Tel.   Co..    112  Mass.  West.  U.  Tel.  Co.,  66  Cal.  579,  6  Pac. 

71,  17  Am.  Rep.  69;   Clonent  v.  West.  637,   56  Am.   Rep.    119;    West.   U.   Tel. 

U.  Tel.  Co.,   137   Mass.  463;   Becker  v.  Co.  v.  Hearue,  77  Tex.  83. 
West.  U.  Tel.  Co.,  11  Neb.  87,  7  X.  W. 


(^32]  AS   TO   COM.MOX    CARRIERS.  ST 

make  them  absolutely  and  unconditionally  liable  for  any  incorrect- 
ness in  the  sending  of  the  messages,  except  Avhen  prevented  by  the 
act  of  God  or  the  pul)lic  enemy,  it  must  be  done  by  statutory  enact- 
ments. 
§  32.    Reasonableness  of  statutes — making  them  common  carriers. 

Many  of  the  most  important   business  transactions  of  the  world 
depend  for  their  successful  consummation  upon  the  accuracy  with 
which  telegi'aph  companies  transmit  the  messages  received  by  them. 
Often  the  messages  are  of  the  utmost  importance  to  either  the  sender 
or  addressee,  and  a  failure  to  make  an  accurate  and  correct  transmis- 
sion of  these  would  cause  them  very  great  damage.      Public  policy, 
the  protection  of  the  property  rights  of  the  public,  the  safety  of  the 
people  with  whom  they  carr^^  on  business,  all  require  a  degTee  of  care 
commensurate  with  the  magnitude  of  the  public  interest  involved. 
Therefore,  a  clear  and  definite  understanding  of  these  companies' 
liabilities  should  be  known  by  the  public  and  not  subject  those  with 
whom  they  deal  to  be  forever  and  eternally  troubled,  harassed  and 
annoyed  by  conditions,  stipulations  and  limitations  of  liability  made 
by  such  companies  and  forced  upon  the  public.    There  is  no  more  rea- 
son w^hy  an  individual  should  l)c  bound  by  the  laws  of  the  state  than 
telegraph  companies.     If  the  i)assage  of  such  laws  have  the  effect  to 
make  the  individual  a  better  citizen  and  prevent  him  from  commit- 
ting wrongs ;  or,  in  other  words,  if  they  induce  him  to  be  more  care- 
ful and  particular  in  liis  business  transactions  with  his  fellowman, 
the  same  reason  should  apply  to  laws  pertaining  to  telegTaph  and  tele- 
phone companies.     If  a  telegraph  company  know^s  that  it  w-ill  be  lia- 
ble absolutely  and  unconditionally  to  its  patrons  for  a  failure  to  make 
a  correct  transmission  of  all  the  messages  delivered  to  it  for  transmis- 
sion, the  company  will  be  much  more  careful  and  ]5articular  in  look- 
ing after  its  business,  than  it  would  if  it  could  limit  by  stipulation  its 
own  liability.     Such  statutes  bring  about  better  service  to  the  public 
and  for  this  reason  the  public  receives  a  more  valuable  consideration 
in  return  for  the  many  rights  and  privileges  granted  the  company, 
and  which  are  not  enjoyed  by  the  individuals,  thereby  making  them 
more  equitable  both  to  the  public  and  to  the  company.-- 

==West.  U.  Tel.  Co.  v.  Kemp,  44  Neb.       1!)4,    U2   X.    W.   451,    4S   Am.   St.   Eep. 

723. 


38  TELEGRAPH    A:N^D    TELEPHONE    COMPANIES.  [<^    33 

§  33.    Statutes  superior  to  any  agreement. 

These  statutes  are  superior  to  any  agreement  made  by  a  telegraph 
company.  They  enter  into  and  become  a  part  of  the  agreement  made 
between  the  company  and  its  patrons,  and  none  of  these  agreements 
can  be  made  so  as  to  be  in  conflict  with  them;  otherwise  they  will 
be  void.  The  telegraph  companies  are  bound  by  the  laws  of  the  state 
as  much  as  any  inhabitant  thereof,  and  these  statutes,  therefore,  al- 
ways become  a  part  of  the  contract  made  wuth  the  patron  for  the 
transmission  of  messages.  That  is,  the  telegraph  company  cannot 
ignore  the  law  and  set  itself  up  as  having  superior  power  to  the  states 
to  make  laws,  but  must  obey  the  latter  and  transmit  messages  in  ac- 
cordance with  such  law  or  be  liable  for  its  failure  in  that  respect.-^ 

§  34.    Beyond  the  limit  of  the  state. 

A  statutory  provision  that  "any  telegraph  company  is  hereby  de- 
clared to  be  liable  for  the  non-delivery  of  dispatches  intrusted  to  its 
care,  and  for  all  mistakes  in  transmitting  messages  made  by  any  per- 
son in  its  employ ;  .  .  .  and  any  such  telegraph  company  shall 
not  be  exempted  from  any  such  liability  by  reason  of  any  clause,  con- 
ditions, or  agreement  contained  in  its  printed  blanks,"  is  equitable, 
fair,  and  obligatory  on  all  telegraph  companies  doing  business  in  the 
state,  and  applies  to  such  companies  when  contracting  to  correctly 
send  a  message  to  another  state.^*  They  are  not  penal  statutes  and 
thereby  not  binding  on  the  company  beyond  the  state.  They  are  a 
part  of  the  contract  of  sending  and  a  failure  to  transmit  correctly  to 
Its  destination,  which  may  be  within  another  state,  is  a  breach  thereof 
and  the  party  injured  thereby  becomes  entitled  to  all  damages  actu- 
ally flowing  therefrom,  or  such  as  was  presumed  to  have  been  contem- 
plated at  the  time  the  contract  was  made,  as  a  result  of  such  breach.-" 

^Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  said:    "T'.ie  contract  was  made  at  Pa- 

661    44  N.  W.   1084.  26  Am.   St.  Rep.  pillion    within   this    state    and   tlie   de- 

3g3  fendant  andertook  to  transmit  correct- 

^  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  ly  the  message  to  Kansas  City.     It  did 

661,  44  N.  W.   1084,  26  Am.   St.  Rep.  not  do  so.    The  contract  of  the  defend- 

ggg  ant,   therefore,    was   broken,    and    the 

^  Kemp  V.  West.  U.  Tel.  Co.,  cited  in  plaintiff  tliereby     sustained     damages, 

note  24,   29.     The   court   in  this  case.  The    place    where    part    of    the    service 


<^  ;36]  AS  TO  coMMOisr  carriers. 


39 


§  35.     Substantial  compliance  with  form  of  message. 

These  statutes  do  not  mean,  when  declaring  telegraph  companies 
to  be  common  carriers  that  the  messages  must  be  transmitted  in  the 
exact  words  of  the  message  received  by  the  company,  but  a  substantial 
compliance  with  the  words  and  language  is  all  that  is  necessary,  pro- 
vided the  substance  of  the  message  has  been  transmitted,  and  no 
harm  has  been  done.  No  better  reason  for  such  a  rule  can  be  given 
than  that  of  Judge  Campbell  who  said :  "Can  it  be  supposed  that  for 
changing  my  signature  or  address  from  Campbell  to  Camel,  or  Cam- 
pel,  or  Cambelle  or  Cowmel,  according  to  the  form  of  writing  which  is 
sometimes  met  with,  in  a  message  sent  by  me  or  to  me,  and  promptly 
delivered,  and  accomplishing  the  purpose,  and  doing  no  harm,  the 
penalty  would  be  incurred  ?  To  so  hold  would  impute  to  the  legis- 
lature a  spirit  of  injustice  and  cruelty  that  would  seriously  reflect  on 
its  attempt  to  legislate  in  this  matter  for  the  public  interest."-^ 

§  36.    Prima  facie  negligence. 

Where  a  telegraph  company  fails  to  transmit  a  message  correctly, 
it  is  prima  facie  evidence  of  the  company's  negligence.  So,  in  an  ac- 
tion brought  to  recover  damages  for  the  erroneous  tiansmission  of 
a  telegraphic  message,  proof  by  the  plaintiff  of  the  contract,  which 
may  be  implied  by  the  delivery  of  the  message  to  be  transmitted,  and 
its  acceptance  by  the  defendant's  agent,  and  of  the  breach,  makes  out 
a  prima  facie  case ;  and  the  plaintiff  need  not  go  further  and  show 
any  negligence  or  omission  of  the  defendant.^'^    If  the  failure  was  not 

was  to  be  performed  can  make  no  dif-  justly  assumed  that  the  legislature  had 

ference;    the   contract  was   made   here,  in  view  not  only  "reasonable  time"  for 

and   was   to   be   in   part   performed   in  delivery,  but  reasonable  conformity  to 

this  state,  and  the  defendant  is  liable  the  terms  of  the  message  so  as  to  pre- 

for  the  breach  thereof.  sent  it  to  the  sendee  in  such  time  as  to 

^^  West.  U.  Tel.  Co.  v.  Clark,  14  So.  effect  the  purpose  for  which  it  is  sent." 

452.      The  court  further  sa,id:   "If  the  "Pearson  v.  West.  U.  Tel.  Co.,   124 

message     transmitted      and     delivered  New  York  256,  21  Am.  St.  Rep.  662; 

must  be  a  reproduction  verbatim  et  lit-  West.   U.    Tel.   Co.   v.    Short,   53    Ark. 

eratim  et  jninctuatim,   of  that  written  434,  14  S.  W.  649;   Eeed  v.  West.  U. 

to   be   sent   or   the    penalty    denounced  Tel.  Co.,  135  iMo.  661,  58  Am.  St.  Rep. 

by  the  section   may  be   recovered,   the  609,  34   L.   R.  A.   492;    West.   U.  Tel. 

statute  is  needlessly  severe.     No  inter-  Co.  v.  Blanchard,  08  Ga.  299,  45  Am. 

est  requires  such  nicety,  and  it  may  be  Rep.  480;  Tyler  v.   West.  U.  Tel.  Co., 


40  TELEGRAPH   AJv^D   TELEPHOTCE    C0MPA:NIKS.  ["^    38 

the  result  of  negligence  tlie  means  of  showing  that  fact  is  almost  in- 
variably within  the  exclusive  possession  of  the  company.  To  require 
the  sender  to  prove  the  negligence,  after  showing  the  mistake,  would 
be  to  require  in  many  cases  an  impossibility,  not  infrequently  result- 
ing in  enabling  the  company  to  evade  a  just  liability.-^ 

§  37.    Cannot  exempt  themselves  by  contract. 

Telegraph  companies  are — and  that,  too,  in  the  absence  of  a  statute 
— so  far  common  carriers  that  they  cannot  exempt  themselves  from 
liability  for  the  consequences  of  their  own  negligence  or  that  of  their 
servants  by  a  contract  made  between  them  and  the  sender.  Tele- 
graph companies,  though  not  common  carriers,  are  engaged  in  a 
business  that  is,  in  its  nature,  almost,  if  not  quite,  as  important  to 
the  public  as  that  of  carriers.  Like  common  carriers,  they  cannot 
contract  with  their  employers  for  an  exemption  from  liability  for 
the  consequence  of  their  own  negligence.^^ 

§  38.    Public  servants  must  serve  the   public   impartially   and   in 
good  faith. 

Telegraph  companies  are  not  common  carriers,  in  the  absence  of 
statutes,  in  that  they  are  not  insurers  of  correct  transmission  of  mes- 
sages, but  they  are  common  carriers  to  the  extent  that  they  must  serve 
all  alike  who  apply  to  them  for  services  wdiich  falls  within  the  scope 

GO    111.    421,    14    Am.    Rep.    38;    Smith  Co.,  Gl  Vt.  461,  17  Atl.  776,  15  Am.  St. 

V.  West.  U.  Tel.  Co.,  57  Mo.  App.  259;  Rep.    917:    Brown   v.    Postal    Tel.    Co.. 

Telegraph  Co.  v.  Griswold,  37  Ohio  St.  Ill  N.  Car.  187,  16  S.  E.  179.  17  L.  R. 

301,     41     Am.    Rep.    500;     Bartlett  v.  A.   648,   S2  Am.   St.   Rep.   793;    Pacific 

West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Tel.  Co.  v.  Underwood,  37  Neb.  315.  55 

Rep.  437;  West.  U.  Tel.  Co.  v.  Carew,  N.   W.    1057,    40   Am.    St.    Rep.      490: 

15  Mich.  525;  Fowler  v.  West.  U.  Tel.  Staney   v.    West.    U.    Tel.    Co.,    92    Ga. 

Co.,  80  Me.  381,  15  Atl.  29,  6  Am..  St.  613,    18    S.   E.    1018,   44   Am.    St.   Rep. 

jjep   211.  95;  West.  U.  Tel.  Co.  v.  Linn,  87  Tex. 

=»West.  U.  Tel    Co.  v.  Short,  53  Ark.  7,  47  Am.  St.  Rep.  58;   Reed  v.  West. 

^34,                         '  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904. 

^  Southern   Express   Co.   v.   Caldwell,  34  L.  R.  A.  492,  58  Am.  St.  Rep.  609 : 

21  Wall.    (U.  S.)    269;  Smith  v.  West.  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky., 

U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  591,  36  L.  R.  A.  711,  66  Am.  St.  Rep. 

126;  Pepper  v.  Tel.  Co.,  87  Tenn.  554,  361;   Barnes  v.  West.  U.   Tel.   Co.,  24 

11  S.  W\  783,  4  L.  R.  A.  660,  10  Am.  Nev.  125,  77  Am.  St.  Rep.  791,  50  Pac. 

St.  Rep.  699;    Gillis  v.  West.  U.  Tel.  438. 


§    30]  AS   TO    COMMON    CAIiKlKKS.  41 

of  their  business.'"^  Whenever  they  so  hold  themselves  out  to  the  peo- 
ple, after  having  obtained  the  power  of  exercising  the  right  of  emi- 
nent domain,  they  then  become  public  servants  to  be  controlled  by 
the  public.  The  public,  means  the  people,  no  one  of  whose  privi- 
'leges  are  greater  or  whose  favors  are  more  acceptable  than  any  other 
citizen.  They  must  be  served  as  one  people,  and  in  the  same  man- 
ner by  all  who  place  themselves  before  the  public  as  public  servants. 
Whenever  they  are  applied  to  by  any  one  to  perform  a  duty  which 
falls  within  their  corporate  powers,  the  same  must  be  done  punctual- 
ly, impartially  and  in  good  faith.  It  is  a  duty  they  owe  to  the  public 
— to  the  people — which  any  servant  owes  to  his  master,  and  they 
must  look  to  the  public  as  if  it  were  one  master.  "For  one  of  these 
companies  not  to  receive  or  not  to  transmit  and  deliver  a  dispatch 
Avhen  it  ought  to  do  so,  is  more  than  a  refusal  to  contract  or  than  the 
breach  of  a  contract;  it  is  a  wrong  as  pronounced  as  would  be  that 
of  a  person  who  should  forcibly  exclude  another  from  the  telegraph 
office,  and  prevent  him  from  handing  in  a  dispatch  which  he  desired 
to  lodge  for  transmission."^^ 

§  39.    Exception  to  rule. 

There  arc  conditions  and  exceptions  to  this  rule  as  is  generally  the 
case.  For  instance,  these  companies  must  first  be  compensated  or  an 
offer  made  to  compensate  them  for  sending  the  message.  They  must 
serve  all  impartially  who  apply,  but  they  cannot  be  compelled  to  do 

*"  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  carriers      in   the     strict   sense   of     the 

248.  21  N.  E.  4,  15  Am.  St.  Rep.   109;  term."      Fowler   v.   West.   U.   Tel.    Co.. 

State  V.  Bell   Tel.   Co.,   10   Cent.   L.   J.  0  Am.  St.  Rep.  213:   Inter  Ocean  Puh. 

438,   11   Cent.  L.  J.  359,  22  Alb.  L.  J.  Co.  v.  Ass'd  Press,   184  111.  438.  48  L- 

3G4;  Stale  v.  Bell  Tel.  Co.,  23  Fed.  539,  R.  A.   56S.   56   K   E.   852.     They   have 

also  reported  in  note  to  59  Am.  St.  Rep.  no   right   to   discriminate   between  per- 

172.     It  uas  said  on  this  point:     "It  sons  and  corporations,  and  courts  will 

is   now   perfectly  well    settled,   by  the  interpose  bj'  writs  of  mandate  in  favor 

gi'eat  weight  of  judicial  authoritj^  that  of  persons  to  whom  the  use  of  the  tel- 

although    telegraph    companies   are   en-  pplione  is  denied.     Central  U.  Tel.  Co. 

gaged    in    wliat    may    appropriately   be  v.  Falley,  10  Am.  St.  Rep.  131. 
formed  a   jiublic  employment,  and  are,  "Gray  v.   West.  U.  Tel.  Co..  87   Ga. 

therefore,    bound    to    transmit,    for    all  350,  27  Am.  St.  Rop.  260,   14  L.  R.  A. 

persons,    messages    presented    to    them  95. 
for  that  purpose,  they  are  not  coimnon 


4:2  TELEGEAPH  AND   TELEPHONE    OOMPANIES.  [<§,    39 

SO  until  thej  are  paid  or  an  offer  is  made  to  pay  for  their  services ; 
jet  these  charges  must  be  the  same  to  all  since  they  are  regulated  by 
the  government.  They  should  be  presented  within  office  or  legal 
hours ;  as  a  telegraph  company  would  not  be  compelled  to  receive  and 
transmit  a  telegTam  after  nighttime,  if  it  were  not  the  rule  for  it  to 
do  so;  neither  are  they  under  obligations  to  transmit  news  on  Sun- 
day, where  such  it  not  the  custom.  There  are  some  statutes  which 
limit  the  kind  of  messages  to  be  transmitted ;  to  enforce  these,  pen- 
alties are  imposed  on  the  violators  of  such  statutes.  They  need  not 
transmit  messages  in  regard  to  market  reports;  nor  need  they  fur- 
nish "bucket-shops"  with  market  quotations.  Again,  a  telegraph  com- 
pany could  not  be  compelled  to  receive  for  transmission  a  message 
which  was  open  to  the  charge  of  indecency  or  profanity,  and  perhaps 
other  vices,  or  expressed  in  language  which  might  condemn  it;  but 
unless  the  tone  or  expression  was  such  as  would  subject  the  company 
or  any  of  its  servants  to  an  indictment  or  a  civil  action,  they  would 
be  in  duty  bound  to  accept  and  transmit  the  message.^^  They  are 
not  to  consider  the  subject-matter,  unless  it  shows  on  its  face  that 
the  company  would  be  liable  to  a  criminal  prosecution  or  subject  it- 
self to  an  action  in  tort ;  for  there  are  many  messages,  such  as  cipher 
telegrams,  which  are  not  understood  by  the  company,  and  to  require 
them  to  stop  to  consider  the  subject-matter  of  every  message  would 
work  a  hardship  not  only  on  themselves,  but  also  on  the  public.^^ 

§  40.    Duty  to  forward  message  in  order  of  time  received. 

It  is  the  duty  of  a  telegraph  company  to  forward  messages  in  the 
order  of  time  in  which  they  are  received,  unless  the  company  is  under 
obligations,  by  statute  or  public  policy,  to  give  precedent  to  certain 
messages,  as  those  of  a  governmental  nature  or  such  as  are  of  great 
importance."*  It  is  an  obligation  they  owe  to  the  public,  to  treat  each 
and  every  one  who  applies  to  them  in  good  faith  and  impartially, 

'^Each  of  these  conditions  are  fuller  ■''*  Davis  v.  West.  U.  Tel.  Co.,  1  Cen. 

treated  in  other  parts  of  this  work  and  Sup.  Ct.  100;  Mackay  v.  West.  U.  Tel. 

for  this  reason,  we  have  not  cited  ref-  Co.,  16  Nev.  222;  Allen  Tel.  Cases  563; 

erences.  West.    U.   Tel.   Co.   v.    Wnrd.,   23    Ind. 

**West.  U.  Tel.  Co.  v.  Ferguson,  57  377,  85  Am.  Dec.  462. 
Ind.  495. 


§    41]  AS  TO  COM^rON  CARRIERS.  43 

and  should  they  delay  the  transmission  of  a  telegram  in  favoi  of  one 
later  received,  favoritism  and  impartiality  would  be  sliowm,  which 
might  cause  serious  injury  to  the  sender,  to  whom  they  would  he  lia- 
ble. The  general  rule  of  law  that  as  to  all  valid  contracts  the  first  in 
time  have  precedence  over  those  afterwards  made,  governs  contracts 
made  with  telegraph  companies  for  transmitting  messages ;  therefore, 
it  is  the  duty  of  the  company  to  carry  out  its  part  of  the  contract  by 
sending  messages  in  the  order  of  time  in  which  the  contracts  are  made 
or,  in  other  words,  in  the  order  of  time  in  which  they  are  received. 
There  are  exceptions  to  this  rule  where  the  company  is  under  obli- 
gations, either  by  statute  or  public  policy,  to  give  precedence  to  other 
messages.  Governmental  messages  have  precedence  over  private  tel- 
egrams. These  concern  the  whole  people,  and  if  they  were  not  enti- 
tled to  a  preference  over  private  messages,  more  serious  and  greater 
harm  would,  very  probably,  be  inflicted  than  if  they  did  not  have 
these  privileges ;  and  yet,  there  might  be  instances  when  private  mes- 
sages would  be  of  such  great  importance,  as  would  entitle  them  to 
almost,  if  not,  an  equal  privilege  as  that  given  in  governmental  mes- 
sages. If  the  operator  knows  that  the  message-  should  be  sent  im- 
mediately, or  great  bodily  harm  would  be  done,  it  then  becomes  of 
such  great  importance  as  would  give  it  precedence.  There  are  sta- 
tutes in  SQme  states  which  give  private  messages  precedence  over 
others,  where  its  mission  is  in  regard  to  serious  illness  or  death;  but 
the  general  rule  is  that  they  must  be  forwarded  in  the  order  of  time 
in  which  they  are  received.  The  legislature  may  require  the  com- 
pany to  give  precedence  to  such  messages  as  are  sent  out  by  the  of- 
ficers of  the  government,  and  in  the  absence  of  this,  public  policy 
might  demand  this  right.  The  agent  of  the  company  should  judge 
the  character  of  the  person  who  presents  himself  as  an  officer  of  the 
government  and  the  nature  of  the  subject-matter  before  giving  the 
message  preference,  and  this  cannot  always  be  correctly  done ;  tlie 
agent  labors  under  the  same  disadvantage  in  determining  the  im- 
portance of  a  private  message,  and  for  this  reason  the  rule  should  be 
closely  adhered  to. 

§  41.    Should  not  disclose  the  message. 

It  is  the  duty  of  a  telegraph  or  telephone  company  to  abstain  from 
'lisclosing  or  using  the  contents  of  a  message  which  it  receives  for 


44  TELEGRAPH   AND   TELEPHONE   COMPANIES.  [^    41 

transmission.^^  It  is  as  much  a  public  duty  for  these  companies  to 
preserve  the  secrecy  of  the  contents  of  messages  delivered  to  them  for 
transmission  as  it  is  to  serve  the  public  impartially ;  and  if  they  are 
guilty  of  a  willful  breach  of  such  duty,  they  will  be  liable  for  all  dam- 
ages arising  therefrom.  There  are  statutes  in  some  states  which  im- 
pose a  penalty  on  these  companies  and  those  to  whom  messages  are 
intrusted  for  transmission,  for  using  or  suffering  to  be  used,  or  will- 
fully divulging,  the  contents  of  same.  It  is  generally  held  by  the 
courts  that  in  the  absence  of  such  statutes,  they  are  only  liable  for 
a  breach  of  contract,  if  for  anything/''^'  It  is  liold  by  the  courts  that 
a  telegram  is  not  a  privilege  communication  and  no  statute  in  either 
of  the  states  of  the  United  States  has  made  them  so.^^  :Nreither  is 
the  telegraph  companies  operated  by  the  government  so  that  the  tele- 
grams may  have  the  same  protection  as  is  given  messages  through  the 
mail.  As  was  ably  observed  by  Judge  .Henry,  while  discussing  this 
point:  "TelesTaph  lines  are  not  operated  by  the  government,  which 
is  in  no  manner  engaged  in  the  business  of  transmitting  telegraphic 
messages.  It  may  enact  laws  in  relation  to  them,  as  to  other  cor- 
porations, but  has  no  business  connection  with  them.  On  the  other 
hand,  postal  facilities  were  established  by  Congress;  the  mails  are 
carried  by  the  government  througli  its  own  agents,  and  penal  statutes 
protect  communications  sent  through  the  mail;"^^  he  further  says: 
"there  is  no  statute  of  this  state  or  principle  of  law  which  places  a 
telegram  on  a  different  ground  from  that  which  any  other  communi- 
cation occupies,  made  by  one  through  another,  to  a  third  party,  with 
respect  to  the  liability  of  the  confidant  to  be  called  as  a  witness  to 
produce  it  and  testify  to  it.  There  is  no  such  analogy  between  the 
transmission  of  communications  by  mail  and  their  transmission  by 
telegraph  as  would  justify  the  application  to  the  latter  of  the  princi- 
ples which  obtain  wdth  respect  to  the  former ;  and  certainly  penal  stat- 
utes in  relation  to  one  cannot  by  the  court  be  declared  applicable  to 


"  Scott  and  Jarnagin  on  Telegraphs,  gram  wliere  subject  is  iiioro  fully   dis- 

sec.  136-138;   Gray  on  Telegraphs,  sec.  cussed. 

25;    Redfield    on      Carriers,    see.      567;  ^^  See   Chapter   on    Trivilege   Commu- 

Bank  of  California  v.  West.  U.  Tel.  Co.,  nication. 

.52  Cal.  280.  ^  Ex    parte    Brown,    72   Mo.    83,      -S7 

^  See  elsewhere  disclosure  of  a  tele-  Am.  Eep.  428. 


<§    41]  AS  TO   COMMON   CARRIERS.  45 

tiie  other.""'"^  There  are  some,  however,  who  urge  that  the  same  rulr 
could  apply  to  the  telegraphic  communications  and  those  carried  on 
through  the  mail,  although  we  feel  safe  in  accepting  the  above  re- 
marks of  Judge  Henry.  The  postal  system  is  under  the  absolute  con- 
trol of  Congress,  while  the  telegraph  companies  are  not.  The  laws 
under  which  the  former  are  carried  on  did  n<»t  contemplate  making 
telegraphic  communications  a  part  of  the  postal  system,  and  before 
they  can,  there  must  be  laws  passed  which  will  include  these  compan- 
ies. It  is  true  that  a  vast  amount  of  trade,  traffic  and  business 
is  transacted  through  this  medium  and  on  account  of  which  they 
liave  become  almost  equal  in  importance  to  the  commercial  world  with 
the  postal  system,  but  before  they  can  come  under  and  be  con- 
trolled by  the  laws  of  the  latter,  there  must  be  statutes  passed  to  that 
effect. 

'•Ex  parte  Brown,  72  :\[o.  83,  37  Am. 
Pvep.  428. 


CHAPTER  IV. 

CORPORATE   RIGHTS   AND   FRANCHISES. 

§  42.  Definition. 

43.  Franchise  and  charter  distinguished. 

44.  Same  continued — distinction  between  franchise    and    license. 

45.  Kinds  of  franchises. 

46.  Alienability  of  franchise — primary. 

47.  Same  continued — secondary. 

48.  Same  continued — leases. 

49.  Same  continued — legislature  may  authorize  alienation. 

§  42.    Definition. 

All  persons  who  undertake  to  create  any  kind  of  a  corporation 
must  first  obtain  from  the  state  the  right  or  privilege  of  becoming  a 
corporation  and  doing  such  business  as  they  may  desire  under  same. 
The  right  or  privilege  is  their  franchise.  '  It  is  hardly  necessary  to  go 
into  the  full  nature  of  a  franchise,  as  the  subject  is  one  to  be  treated 
under  a  work  on  corporations,  but  it  will  be  our  pleasure  to  say  a  few 
things  about  franchises  as  explanatory  of  remarks  which  will  neces- 
sarily follow  as  to  the  vendibility  of  franchises.  In  discussing  this 
subject,  we  will  first  define  the  term  "franchise,"  and  then  specify 
the  different  kinds.  The  legal  idea  of  a  franchise  seems  to  be  a  power 
or  privilege  conferred  by  the  state  upon  an  individual,  upon  a  collec- 
tion of  individuals,  or  upon  an  incorporated  body,  not  possessed 
by  the  inhabitants  of  the  state  as  of  common  right.  Finch  defines 
franchise  "to  be  branches  of  the  royal  prerogative  subsisting  in  the 
hands  of  the  subject  by  grant  from  the  Iving."^  Under  our  government 
and  laws  this  definition  would  not  be  strictly  correct.  Here  they 
spring  from  contracts  between  the  sovereign  power  and  a  private  cit- 
izen, made  upon  a  valuable  consideration,  for  purpose  of  public  ben- 
efit as  well  as  individual  advantage.^  Chancellor  Kent  says :  "Fran; 
chises  are  privileges  conferred  by  gi-ant  from  the  government,  vested 

1  Cruise  Di;?est  278.    This  is  substan-  -State  v.  Real  Estate  Bank,  5  Ark. 

tially   the    definition    of    Blackstone,    2       ,59.5,  41   Am.  Dec.   109. 
Bl.  Com.  37. 

(46) 


<^    44]  COEPOKATE    EIGHTS   AND    rUAXCHISES.  47 

in  private  individuals."  ^  A  franchise  is  nothing  more  than  the  right 
or  privilege  of  being  a  corporation,  and  of  doing  such  things,  and 
such  things  only,  as  are  authorized  by  the  corporation's  charter.'* 
Such  right  or  franchise  is  defined  by  Bouvier  to  be  "a  certain  privi- 
lege conferred  by  grant  from  government,  and  vested  in  individ- 
uals." ^ 

§  43,    Franchise  and  charter  distinguished. 

There  is  a  distinction  between  a  franchise  and  a  charter.  A  char- 
ter contains  the  grant  of  a  franchise,  but  it  is  not  the  franchise  itself. 
There  is  generally  no  evidence  that  a  franchise  has  been  granted  ex- 
cept the  charter  which  contains  the  grant.  The  constitutional  in- 
hibition against  impairing  the  obligation  of  contracts  is  not  operative 
upon  the  charter  but  upon  the  contract  which  the  charter  contains, 
and  protects  franchises  because  they  are  valuable  property  or  contract 
rights.*' 

§  44.     Same  continued — distinction  between  franchise  and  license. 

It  is  said  by  some  that  there  is  a  distinction  between  a  privilege 
granted  by  the  legislature  and  a  municipal  license,  in  that  a  muni- 
cipal corporation  cannot  grant  a  franchise  but  can  grant  only  a  mere 
license.'^  The  distinction  is  believed  to  be  untenable,  for  they  are 
both  acquired  from  the  legislature,  one  directly,  and  the  other  indi- 
rectly or  through  the  municipal  corporation,  and  in  each  privilege 
are  conferred  rights  which  are  not  enjoyed  by  the  inhabitants  as  of 
common  right.^  Another  distinction  exists  between  a  privilege 
granted  to  the  corporation  or  its  members  as  corporators,  and  a  mere 
personal  privilege  annexed  by  state  or  charter  to  membership  in  a 
corporation ;  as  an  exemption  of  its  servants  or  employees  from  work- 
ing on  the  public  roads,  serving  as  jurors  or  serving  in  the  army.  Such 

^3  Kent  Com.  458.  4  Neb.  416;  Augusta  Bank  v.  Earle,  13 

'♦Fietsani  v.  Hay,  122  111.  293,  3  Am.  Pet.    (U.  S.)    519,  10  Led.  274. 

St.  Rep.  493,  13  N.  E.  901.  "Oakland  R.  R.  Co.  v.  Oakland,  etc.. 

"  1     Bouv.    L.    Diet.     See     following  Co..  45  Cal.  3G5. 

cases    for    other    definitions.      State    v.  '  Denver,  etc.,  R.  Co.  v.  Denver  City 

Western  Irrigating  Canal  Co.,  40  Kan.  R.  Co.,  2  Colo.  673. 

06,   19  Pac.  34!).  10  Am.  St.  Rep.   166;  « State   v.    East   Cleveland   R.    Co.,   ti 

.Vbbott    V.    OuKilia    Smithing,    etc.,    Co.,  Ohio  Cir.   Ct.  318. 


4:8 


TELEGKAPII   AXD   TELEPHONE    COMPANIES. 


[§  44 


an  exemption  is  held  b}'  some  courts  as  a  mere  personal  privilege,^  by 
others  it  is  held  tliat  it  is  not  a  mere  personal  privilege  to  the  em- 
ployees of  the  corporation ;  and  still  by  others,  it  is  held  a  right  or 
privilege  of  the  corporation  itself  J  "^ 

§  45.     Kinds  of  franchises. 

Enough  has  been  said  about  the  definition  of  a  franchise ;  so  we 
shall  now  consider  the  kinds  or  classes  of  franchises  which  may  be 
vested  in  corporations.  There  are  two  kinds  of  franchises,  and  it  is 
necessary  to  have  a  clear  understanding  of  each  in  order  to  be  able 
to  distinguish  between  the  two  and  see  why  one  is  alienable  and  the 
other  is  not.  There  is  a  primary  franchise  and  a  secondary  franchise. 
The  primar)^  franchise  is  the  right  of  being  or  existing  as  a  corpora- 
tion. It  is  a  right  granted  by  the  legislature  to  a  body  of  men  to 
be  and  act  as  an  artificial  person,  without  incurring  individual  liabil- 
ity. It  is  the  right  to  be,  to  exist,  to  be  known,  and  to  l)c  recognized 
as  a  corporation  and  clothed  with  such  rights  and  imnninities  as 
are  not  enjoyed  by  the  people  in  common. ^^    The  secondary  franchise 


^Neeley  v.  State,  4  Lea.   (Tenn.)   316. 

"Johnson  v.  State,  88  Ala.  176,  7  So. 
253;  Zimmer  v.  State,  30  Ark.  677. 
The  latter  is  a  mere  personal  privilege 
and  is  subject  to  legislative  revocation 
or  control.  In  re  Scranton,  74  111. 
IGl;  Bragg  v.  People,  78  111.  328;  Bra- 
nish  V.  State,  6  Baxt.  (Tenn.)  5.30; 
Dumme  v.  People,  94  111.  120,  34  Am. 
Rep.  213. 

"^  While  discussing  this  question, 
Judge  Sawyer,  in  the  course  of  his 
very  able  opinion  said :  "The  creative 
act  necessarily  extends  only  to  the 
bringing  into  being  of  an  artificial  per- 
son, with  the  capacit}'  stated  among 
which  is  a  capacity  to  receive  and  en- 
joy in  common  grants  and  privileges 
immunities;  that  is  to  say  a  capacity 
to  receive  and  enjoy  such  grants,  priv- 
ileges and  immunities  as  may  be  made 
either  at  the  time  of  the  creation  or 
any   other  time.      'I'lic    crciition    of   the 


being  with  the  capacity  to  receive 
grants,  is  one  thing;  the  granting  of 
other  privileges  and  immunities,  which 
it  has  the  cajjacity  to  receive  when 
created,  is  another.  When  such  a  be- 
ing is  bvonglit  into  existence,  a  corpor- 
ation has  been  created.  A  legal  entity, 
a  person  has  been  created  with  a  ca- 
])acity  to  do  by  its  corporate  name, 
such  things  as  the  legislative  power 
may  permit,  and  receive  such  grants 
of  such  rights  and  privileges  and  of 
such  property,  as  the  legislature  itself 
or  ])i'iviite  persons  with  the  legislative 
permissi'ju  may  give.  But  I  do  not  un- 
derstand that  every  right,  privilege,  or 
grant  that  can  be  conferred  upon  a  cor- 
poration must  be  given  simultaneousl.y 
witli  the  creative  act  of  incorporation. 
On  tlie  contrary.  1  suppose  the  artifi- 
cial being  nnist  be  created  with  a  ca- 
])acity  to  r('cci\e  before  anything  can 
l)e  receiv.'d.     The   riglit    to  be  a  corpor- 


§    40]  CORrORATE    RIGHTS    AND   FRANCHISES.  49 

is  the  right  to  construct,  operate  and  maintain  a  corporation.  The 
one  is  the  right  to  be  a  corporation  and  the  other  is  the  right  to  carry 
on  and  operate  the  same  after  the  jmrnary  franchise  has  been  vested 
in  the  corporation.  The  secondary  franchise  cannot  exist  until  the 
first  has  been  vested  in  the  corporators  and  it  would  be  needless  to 
vest  the  latter — and  jet  it  may  be  done — in  the  corporators  with- 
out the  former  boinff,  or  to  be,  in  existence.  In  other  words,  to  be 
more  specific  in  the  matter  and  to  apply  the  general  corporation  law 
in  regard  to  the  point  at  issue  to  the  subject  of  this  treatise,  the  pri- 
mary franchise  vested  in  a  telegraph  or  a  telephone  company  is  the 
right  vested  in  the  corporation  or  corporators  to  exist  as  one  of  these 
companies,  and  the  secondary  franchise  is  the  privilege  to  construct 
and  maintain  its  lines  and  to  carry  on  and  operate  the  business  of 
transmitting  intelligence  by  means  of  electricity. 

§  46.     Alienability  of  franchise — primary. 

Having  considered  the  definition  of  a  franchise  and  the  different 
kinds,  we  hope  the  reader  will  l)e  tlie  more  able  to  see  why  one  fran- 
chise may  under  some  cirenmstances  be  alienated  while  the  other 
may  not ;  and  this  we  shall  now  discuss.  The  primary  franchise,  or 
the  right  or  privilege  to  be  a  telegraph  or  telephone  company,  cannot 
lie  alienated,  either  absolutely  or  conditionally,  without  the  consent 
of  the  creating-  power. ^-     There  is  by  no  means  the  same  harmony 

ation  is  itself  a  separate  distinct  and  "  Commonwealth  v.  Smith,  10  Allen 
independent  franchise,  complete  Avithin  448,  87  Am.  Doe.  072;  Richardson  v. 
itself,  and  a  corporation  having  been  Sibley,  11  Allen  65,  87  Am.  Dec.  700; 
created,  enjoying  this  franchise,  may  Penn.  R.  R.  Co.  v.  St.  Louis,  etc.,  R. 
receive  a  giant  and  enjoy  other  distinct  Co.,  118  U.  S.  290,  6  S.  Ct.  Rep.  1094: 
and  independent  franchises,  such  as  Lauman  v.  Lebanon  Valley  R.  Co..  30 
may  he  u;rantcd  to  and  enjoyed  by  nat-  Pa.  St.  42,  72  Am.  Dec.  685;  Roper  v. 
ural  persons.  But  because  it  enjoys  McWhorter,  77  Va.  214;  Hall.  v.  Siilli- 
the  latter  franchises,  they  do  not,  van  R.  R.  Co.,  2  Red.  Am.  Ry.  621; 
therefore,  constitute  a  part  of  the  dis-  Gue  v.  Tide- Water  Canal  Co.,  24  How. 
tinct  and  independent  essential  fran-  257 ;  Morgan  v.  Louisiana,  93  U.  S. 
chise — the  right  to  be  a  corporation.  217;  Coe  a.  Colimibus,  etc.,  R.  Co.,  10 
They  are  additional  franchises  given  to  Ohio  St.  372,  75  Am.  Dec.  518;  Clark 
the  corporation,  and  not  parts  of  the  v.  Omaha,  etc.,  R.  Co.,  4  Xeb.  458: 
corporation  itself — not  of  the  essence  Black  v.  Delaware,  etc..  Canal  Co.,  24 
of  the  corporation."  Southern,  etc.,  X.  J.  Eq.  465;  Ammant  v.  Xew  Alex- 
Co.  V.  Orton,  32  Fed.  4.")7,  473.  andria   Turnpikt-  Co.,   13   Serg.   and   R. 

T.  &  T.— 4 


50 


TELEGRAPH   AIs^D    TELEPHONE    COMPANIES. 


[§  46 


of  opinion  as  to  the  fundamental  principles  upon  ^vliicli  the  doctrine 
is  based.  The  followinj^-  reasons  have  been  assigned  by  the  courts  for 
its  existence :  A  franchise  is  a  personal  trust,  and  the  state  has  there- 
fore a  right  to  declare  who  shall  be  the  transferee  of  such  trust  ;^^  a 
corporation  enjoying  public  franchises  is  an  agent  of  the  state  and 
on  the  ordinary  principles  of  agency  is  incapable  of  delegating  its 
powers  without  the" permission  of  the  principal;^'*  a  grant  of  a  public 
franchise  is  a  contract  between  the  state  and  the  grantee,  by  which 
the  latter  undertakes  to  perform  certain  public  duties,  from  the  per- 
formance of  which  he  cannot  release  himself  without  the  consent  of 
the  other  contracting  party;  ^^  the  powers  of  the  grantee  of  a  fran- 


210,  15  Am.  Dec.  593;  Gulf  etc.,  R. 
Co.  V.  Morris,  67  Texas  692;  Buflfett  v. 
Great  W.  E.  R.  Co.,  25  111.  353;  Ar- 
ther  V.  Commercial  Bank,  9  Smedes  & 
M.  394,  4S  Am.  Dec.  719;  Ragan  v. 
Aiken,  9  Lea  (Tenn.)  609,  42  Am.  Rep. 
684;  Troy  etc.,  R.  Co.  v.  Kerr,  17  Barb. 
581 ;  Troy  and  Boston  R.  Co.  v.  Boston 
Hoosae  Tunnel  etc.,  R.  Co.,  86  N.  Y. 
107;  Abbott  v.  Johnston,  etc.,  R.  Co., 
SO  N.  Y.  27,  36  Am.  Dec.  572;  People 
V.  Albany  etc.,  R.  Co.,  77  N.  Y.  232; 
East  Boston  Freight  Co.  v.  Hubbard, 
10  Allen  459;  Stockton  v.  Central  R. 
Co.,  50  N.  J.  Eq.  52;  Fitsan  v.  Hay, 
122  111.  293,  13  N.  E.  501,  3  Am.  St. 
Rep.  492;  Bordstown  etc.,  R.  Co.  v. 
Metcalf,  4  Mete.  199,  81  Am.  Dec.  541; 
Kennebec  etc.,  R.  Co.  v.  Portland  etc., 
R.  Co.,  59  Me.  9;  State  v.  Consolida- 
tion Coal  Co.,  46  Md.  1;  Richards  v. 
Merrimac  etc.,  R.  Co.,  44  N.  H.  127; 
Pittsburg,  etc.,  R.  Co.  v.  Allegheny 
County,  03  Pa.  St.  126. 

^2  Sheplcy  v.  Atlantic,  etc.,  R.  Co.,  55 
Me.  395;  Kennebec,  etc.,  R.  Co.  v. 
Portland,  etc.,  R.  Co.,  59  Me.  9;  Bank 
of  Middlesbury  v.  Edgerton,  30  Vt. 
182;  Miller  v.  Rutland,  etc.,  R,  Co.,  30 
Vt.  452;  U.  S.  V.  West.  U.  Tel.  Co.,  50 
Fed.  28;  U.  S.  v.  Union  Pac.  R.  Co., 
160  U.  S.  1.  16  S.  Ct.  Rep.   190;  U.  S. 


V.  Northern  Pac.  R.  Co.,  120  Fed.  546; 
Reiff  V.  West.  U.  Tel.  Co.,  49  N.  Y. 
Super.  Ct.  441 ;  Benedict  v.  W^est.  U. 
Tel.  Co.,  9  Abb.   X.  Car.    (N.  Y.)    214. 

"Beman  v.  Rufford,  1  Sim.  N.  S. 
569;  Great  Northern  R.  Co.  v.  Eastern 
Counties  R.  Co.,  9  Hare.  300 ;  Winch  v. 
Birkenhead,  etc.,  R.  Co.,  5  DeGex.  &  S. 
562,  13  Eng.  L.  &  Eg.  506;  Richmond 
Water  Works  Co.  v.  Richmond  L.  R., 
3  ch.  Div.  82. 

15  Thomas  v.  Railroad  Co.,  101  U.  S. 
83.  In  this  case  the  court  by  Justice 
Miller,  very  ably  said:  "The  principle 
is  that  where  a  corporation  like  a  rail- 
road company  has  granted  to  it  by 
charter  a  franchise  in  a  large  measure 
intended  to  be  exercised  for  the  public 
good,  the  due  performance  of  those 
functions  being  the  consideration  of  the 
public  grant,  any  contract  which  disa- 
bles the  corporation  from  performing 
those  functions  or  by  which  it  under- 
takes without  the  consent  of  the  state, 
to  transfer  to  others  the  rights  and 
powers  conferred  by  the  charter,  and  to 
relieve  the  grantee  of  the  burden  which 
it  imposes,  is  a  violation  of  the  con- 
tract with  the  state,  and  is  void  as 
against  public  policy."  See  also.  Com. 
V.  Smith,  10  Allen  448,  87  Am.  Dec. 
672;  Roper  v.  :\Jc\Vhorter,  77  Va.  214; 


§  46] 


COKl'OKATE   KKiJITS  AND   FRANCHISES. 


51 


.'liise  like  other  grantees  of  the  sovereignty  are  strictly  limited  by  the 
iiistnimeiit  of  grant,  and  the  existence  of  a  power  to  alienate  such  a 
franchise  camiot  he  inferred  in  Hu-  absence  of  express  statutorv-  pro- 
visions; ^"  transfer  of  franchise  may  sometimes  be  illegal,  as  tending 
to  the  establishment  of  mon()])olies.^'  It  has  been  held  that  a  mort- 
gage deed  Avhich  ])rofesses  and  manifests  an  intent  to  convey  the  fran- 
chise of  being  a  corporation  will  not  be  for  that  reason  entirely  void, 
bnt  will  be  operative  to  convey  the  property,  and  perhaps  also  the 
secondary  franchises,  Ix'ing  void  only  so  far  as  it  undertakes  to  con- 
vey the  corporate  capacity  of  the  mortgagor. ^"^  Xeither  can  they  bo 
alienated  or  seized  under  judicial  process  by  creditors,  without  the 
consent  of  the  legislature,  because  this  would  disable  them  from  dis- 
charging the  public  duties  which  they  have  assumed  and  in  consider- 
ation of  which  their  franchises  have  been  gTanted  to  them.^''  The  fact 


jVrmiroe  v.  Thomas,  5  Cal.  470;  Lau- 
iiian  V.  Lebanon,  etc.,  K.  Co.,  30  Pa. 
St.  42,  72  Am.  Dec.  685;  Central 
Transportation  Co.  v.  rullman  Palace 
Co.,  139  L.  S.  24,  11  S.  Ct.  Rep.  478; 
Freeman  v.  Minneapolis,  etc.,  R.  Co., 
2:5  Mo.  443;  Kenton  County  Court  v. 
Turnpike  Co.,  10  Bush  529;  Lekin  v. 
Railroad  Co.,  13  Or.  436,  11  Pac.  68, 
57  Am.  Rep.  25;  Pierce  v.  Emery,  32  N. 
II.  484;  Railroad  Co.  v.  Brown,  17 
Wall.  445;  Chicago  Gas  Light  Co. 
V.  People's  Gas  Light  Co.,  121  111. 
530,  13  N.  E.  169,  2  Am.  St.  Rep.  1'24: 
Black  V.  Delaware,  etc..  Canal  Co.,  22 
X.  J.  Eq.  130;  New  York,  etc.,  R.  Co. 
V.  Winans,  17  How.  30. 

"Thoma.-;  v.  Railroad  Co.,  101  U.  S. 
82;  Board  of  Corns,  of  Tippecanoe 
County  V.  Lafayette,  etc.,  R.  Co.,  50 
Ind.  85;  People  v.  Chicago  Trust  Co., 
130  111.  2(iS,  22  X.  E.  798,  17  Am.  St. 
Rep.  310,  S  L.  R.  A.  497n;  Lauman  v. 
Lebanon,  etc..  R.  Co..  30  Pa.  St.  42,  72 
Am.  Dec.  085;  Peim.  R.  Co.  v.  St. 
Louis,  etc.,  R.  Co.,  118  C  S.  -I'M).  C, 
S.  Ct.  Rep.  1094;  Richardson  v.  Sib- 
ley, 11  Allen  65,  87  Am.  Dec.  700;  Ab- 
bott  V.    Johnston,   etc.,   R.    Co..    80   X. 


V.  27,  36  Am.  Rep.  572;  Black  v.  Del- 
aware, etc.,  Canal  Co.,  24  N.  J.  Eq. 
464;  Central  Trans.  Co.  v.  Pullman 
Car  Co.,  139  U.  S.  24.  11  S.  Ct.  Rep. 
478. 

"  State  V.  Standard  Oil  Co.,  49  Ohio 
St.  137,  30  X.  E.  279,  34  Am.  St.  Rep. 
541,  15  L.  R.  A.  145. 

'"  Butler  V.  Rahm,  46  Md.  541 ;  Pull- 
man V.  Cincinnati,  etc.,  R.  Co.,  20  Fed. 
Cas.  Xo.  11461,  4  Biss  35;  Fietsam  v. 
Hay,  122  HI.  293,  13  X^  E.  501,  3  Am. 
St.  Rep.   492.' 

''Hays  V.  Ottawa,  etc.,  R.  Co..  61 
111.  422;  Tippecanoe  County  v.  Lafay- 
ette, etc.,  R.  Co.,  50  Ind.  85;  Anderson 
V.  Cin.  Sou.  R.  Co.,  86  Ky.  44,  5  S. 
W.  49,  9  Ky.  L.  Rep.  303.  9  Am.  St. 
Rep.  263;  Treadwell  v.  Salisbury  Mfg. 
Co.,  7  Gray  393.  06  Am.  Dec.  490: 
Charlotte  v.  Omaha,  etc.,  R.  Co.,  26 
Xeb.  159,  4  L.  R.  A.  135,  41  X.  W. 
1106;  Richards  v.  iNIerrimac,  etc.,  R. 
Co.,  44  X\  H.  127;  Susquehana  Canal 
Co.  V.  Bonham,  9  Watts  &  S.  27.  42 
Am.  Dec.  315:  International,  etc..  R. 
Co.  V.  Lskford.  77  Texas  274:  Xaylec 
V.  Alexandria,  etc.  R.  Co.,  83  Va.  707. 
3  S.  E.  369,  5  Am.  St.  Rep.  308;  Gibb> 


52  TELEGKAPH   AXD   TELiaMIONE    COMPANIES,  [§    46 

that  the  alienation  Avonld  be  beneficial  to  the  pecuniary  interest  of 
both  the  telegraph  or  telephone  companies  and  also  the  public,  is  not 
a  matter  to  be  considered  by  the  court  in  a  question  of  this  nature.^^ 
And  it  makes  no  difference  who  are  the  incorporators  of  the  telegraph 
company  and  for  what  general  purpose  it  Avas  created.  For  instance, 
where  a  railroad  company  is  authorized  to  construct,  in  connection 
with  its  railroad,  a  telegraph  line ;  to  manage  and  control  the  same ; 
and  to  fix  the  rate  of  charges  thereon ;  a  contract  made  in  the  absence 
of  the  legislative  consent  by  which  it  undertakes  to  divest  itself  of 
this  public  duty,  by  transferring  the  privilege  to  another  company,  is 
ultra  vires  and  void.-^  Some  courts  hold  that  an  agreement  entered 
into  by  a  telegi-aph  company  with  a  similar  company  to  divide  earn- 
ings and  expenses  is  neither  ultra  vires  nor  against  public  policy.^" 

§  47.    Same  continued — secondary. 

While  there  may  ]3e  some  doubt  entertained  as  to  the  right  of  a 
telegraph  company  to  alienate  its  secondary  franchise  without  the 
legislative  consent,  the  prevailing  doctrine  is,  however,  that  it  has  no 
right  to  make  such  a  conveyance  in  any  form  whether  by  sale,^' 
lease  or  mortgage.  There  may  be  an  exception  to  the  rule  in  that 
it  may  sell  all  the  personal  property,  or,  at  least  so  much  thereof,  as 
is  not  necessary  for  the  purpose  of  discharging  its  public  duties.^* 

V.  Consolidated  Gas  Co.,  130  U.  S.  396,  87   Am.   Dee.   700:    Com.   v.   Smith,    10 

!)  S.  Ct.  .553    32  L.  Ed.  970.  Allen   448,   87   Am.   Dec.   G72;    Worces- 

^West.  U.Tel.  Co.,  50  Fed.  Rep.  28.  ter'v.  Western  E.  Corp.,  4  Mete.  564; 

« Central  Branch  Union  Pac.  E.  Co.  Arther  v.  Com.,  etc.,  Bank,  9  Smede  & 

V.   West.    U.    Tel.    Co.,    3    Fed.    417.    1  M.    394,    48   Am.    Dec.    719;    Pierce   v. 

McCrory  557;   West.  U.  Tel.  Co.  v.  U.  Emery,  32  N.  H.  484;   Central  Trans. 

Pac.    Co..    3    Fed.    1.    1    McCrory    581  :  Co.  v.  Pullman  Palace  Car  Co.,  139  U. 

Atlantic^   etc.,   Tel.    Co.    v.    Union   Pac.  S.   24,    11    S.   Ct.    478,   25   L.   Ed.,   55; 

R  Co     1  Fed   745,  1  McCrory  188,  541.  Oregon  E.,  etc.,  Co.  v.  Oregonian  E.  Co., 

Compare  West.  U.  Tel.  Co.  v.  Kansas  130  U.  S.  1,  98  Ct.  409,  32  L.  Ed.  837 

Pacific  E.   Co.,   4   Fed.   284;    West.  U.  [reversing  22  Fed.  245,   10  Sawy.  464, 

Tel.  Co.  V.  St.  Joseph,  etc.,  E.   Co.,  3  23   Fed.   232,   10   Sa^vy.   472];    Thomas 

Fed.  430,  1  McCrory  565;  West.  U.  Tel.  v.  Western  Jersey  E.  Co.,  101  U.  S.  71, 

Go.  V.   Union  Pac.  E.   Co.,   3  Fed.   423,  25  L.  Ed.  950 ;  New  York,  etc.,  E.  Co. 

1  McCrory  558.  v.  Wimans,  17  How.  31,_  15  L.  Ed.  27. 

=2  Benedict    v.    West.    U.    Tel.    Co.,    9  =^  Coe    v.   Columbus,   etc.,   E.    Co.,    10 

Abb.  N.  Gas.    (N.  Y.)    314.  Ohio  St.  372,  75  Am.  Dec.  518;  Arther 

«Eichardson  v.   Sibley,   II   Allen  05,  v.    Comuicnial    Bank,    9   S.   &   :\r.   394, 


<§>    48]  COKPORATK    UrOIlTS    AXD    l-liA>ClIISES.  53 

But  it  cannot  ali('nat<:'  the  franchise  to  manage  or  control  its  lines, 
as  this  would  result  in  the  company  becoming  j^owerless  to  perform 
its  public  duties.  Ami  if  it  has  public  duties  to  discharge  it  can- 
not be  alienated  or  seized  under  judicial  ])rocess  by  creditors  Avithout 
the  consent  of  the  legislature,-^  nor  be  levied  on  by  execution;-*^  and 
should  a  telegraph  company  alienate  its  franchise  to  another  company 
without  statutory  authority,  it  will  be  liable  to  third  parties  for  all 
torts  committed  on  them  by  their  successors.-"  Xor  can  it  release  it- 
self from  its  contract  obligations  on  the  claim  that  the  agreement 
was  ultra  vires  and  against  public  policy.-** 


§  48.    Same  continued — leases. 

For  the  same  reason  that  a  telegraph  company  cannot  alienate 
absolutely  or  conditionally  its  franchise  of  being  a  corporation,  it  can- 
not, by  lease  or  any  other  contract,  in  the  absence  of  legislative  au- 
thority, turn  over  to  another  corporation  its  line  and  the  use  of  its 
franchise,  since,  a  lease  might  have  the  same  effect  as  a  sale  of  the 
property  ;-^  however,  it  has  been  held  that  a  telegraph  company  could 
lease  its  lines  and  equipments  for  a  reasonable  length  of  time.'"'"  For 
instance,  where  a  contract  is  entered  into  between  two  companies, 
whereby  one  leases  to  the  other  its  franchises  for  a  period  of  nine 
hundred   and  ninety -nine,  or  any  great  number  of  years,  the  lease 

48  Am.  Dee.  719.     It  may  be  conveyed  ""Aimnant   v.      New      Alexandria      «!t 

by  autbority  of  a  legislative  enactment  Pitt.    Turnpike      Koad.    1.3    Serpent     & 

to  that  effect.   Thus,  a  franchise   granted  TJawle  210,  15  Am.  Dec.  593. 

by     a     city    to    a    telephone    company  ""  Xagloe  v.   Alexandria,  etc..  J\.  Co.. 

to   maintain   it.s   line   in   the   streets   of  S3   Va.    707.    3    S.    E.    3fifl,   5   Am.    Pt. 

such  city,  may  be  transferred  and  sold  Rep.  308. 

to  another  corporation  without  the  con-  "'Canal   &    C.    R.    Co.   v.    St.   Charles 

sent  of  ihe  municipality  under  a  stat-  St.  R.  Co.    (La.).   11   So.  702. 

ute   expressly  authorizing  corporations  =»  Thomas    v.    R.    R.    Co..    101    U.    S. 

to   alienate    their    property.      ^Michigan  71  :   Penn.  R.  Co.  v.  St.  Louis,  etc.,  R. 

Tel.   Co.  V.   St.   Joseph,   121   Mich.   502.  Co..     US     T.    S.    290,    6    S.    Ct.    Rep. 

SO   X.    \V.    383.   80   Am.    St.   Rep.    520.  1094;   Oregon  R.   v.  Oregonian  R..   130 

47  L.  R.  A.  S7n.  T.    S.    1.   9   S.   Ct.   Rep.   409;    State   v. 

-=>  Treadmill  v.  Salisbuiy  Mfg.  Co..  7  Atchison   R.   Co..   24   Xeb.    143,   8   Am. 

Gray  393.   00  Am.  Dec.  490;   Xational  St.  Rep.   104,  38  X.  W.  43. 

Foundry   Works   v.   Oconto   U.   Co.,   52  ="*  Philadelphia  v.   West.  U.  Tel.   Co.. 

Fed.  43;  Gregory  v.  Blanchard.  98  Cal.  H  I'bila.   (Pa.)   327.  33  Leg.  Int.   (Pa.) 

311.  33  Pac.   199;   Gulf,  etc.,  R.  Co.   v.  129:    West.    U.    Tel.    Co.    v.    Baltimore, 

Newell.  73  Texas  334.  15  Am.  St.  Pvop.  <'t«'..  U-  Co..  09  Md.  211. 

783. 


54:  TELEGRAPH   AjSTD   TELEPHONE    COMPANIES.  <^    48 

woiild  virtually,  imder  such  circumstances,  amount  to  a  sale.  Where 
a  telegTaph  company  has  a  public  duty  to  perform  and  the  same  has 
been  acquired  by  a  legislative  grant,  it  cannot  dispose  of  the  obliga- 
tions so  acquired,  in  any  manner,  without  the  consent  of  the  grant- 
ing po"wer.^^  Where  the  legislature  gives  the  right  to  a  telegraph 
company  to  lease  its  line  to  another  company,  the  grant  does  not  nec- 
essarily carry  vidth  it  the  franchise  of  being  a  corporation,  and  there- 
by exempt  the  lessor  from  the  responsibilities  for  which  it  has  obli- 
gated itself.^-  It  is  the  duty  of  the  parties  to  the  contract  of  lease  to 
abandon  tlie  contract,  after  they  learn  the  true  status  of  their  condi- 
tion. 

§  49.     Same  continued — legislature  may  authorize  alienation. 

The  legislature  may  by  express  terms  authorize  a  telegraph  or  tel- 
ephone company  to  alienate  its  franchise,""  but  it  must  be  by  an  ex- 
press grant  or  by  reasonable  implication.  An  unauthorized  transfer 
of  a  franchise  may  be  afterwards  ratified  by  the  legislature,  but  there 
must  be  an  expressed  intent  on  the  part  of  this  body  to  ratify  the 
transfer.^*  Where  the  right  to  alienate  a  franchise  has  been  given 
by  the  state,  a  lease  of  such  franchise  may  be  implied  from  such 
grant.  A  mortgage  may  also  be  given  on  such  property  from  the 
authority  to  sell,  where  a  telegraph  company  has  the  consent  of  the 
state  to  alienate  its  franchise ;  and  where  a  sale  has  been  consumma- 
ted under  such  authority,  the  purchasers  thereof  take  the  property 
subject  to  all  the  duties  of  the  vendors.^^ 

"  Riehketts  v.  Chespeake,  etc.,  R.  Co.,  iginal    company.      Such    a    sale      took 

.33  W.  V:i.  433,   10  S.  E.  801,  25  Am.  place  afterward,  and  for  some  time  af- 

St.   Rep.    901,   7   L.    R.    A.    534;    Gulf,  ter   the    sale    the    purchasing    company 

etc.    R.  Co.  V.  Newell,  73  Tex.  334,  15  gave   the   subscribers   of  the  purchased 

Am.  St.  Rep.  788.  company  connections  Avith  its  own  sub- 

22  Harmon  v.   Columbia,  etc.,  R.   Co.,  soribers.     It  was  held  that  the  purchas- 

28   S.   Car.  401,   13  Am.   St.  Rep.   68G.  ing  company,   having  bought  Avith   no- 

^  Michigan   Tel.   Co.   v.   St.      Joseph,  tice,   was   bound  to   assume   and   carry 

121  Mich.  502,  80  N.  W.  383,  80  Am.  out  all  the  obligations  of  the  old  com- 

St.  Rep.  520,  47  L.  R.  A.  87n.  pany;   and  that  its  action  in  purchas- 

■"-*  Thomas  v.  Railroad  Co.,  101  U.  S.  ing  the  old  company's  subscribers  with 

-I  connections   to    its   own   lines   operated 

^'^An   ordinance     granting  to     a   tele-  as    an   acknowledgement   by    it    of    the 

giaph  company  the  right  to  occupy  the  character   of   its   assumed     obligations, 

city  streets  stipulated  that  in  the  event  and   that   it   could   not   thereafter   dis- 

of  a  sale  by  the  company  of  its  prop-  continue   such    connections.      Mahon   v. 

erties,   its  vendee   should  be  bound  by  ]\lich.  Tel.  Co.,  93  N.  W.  629. 
all  the  obligations  imposed   on  the  or- 


CHAPTER  V. 


RIGHT  OF  WAY. 

S   50.  DL'fiiiition. 

51.  Interest   in  land  acquired. 

52.  Same  continued — compensation. 

53.  Same  continued — owner  not  estopped. 

54.  Further  considered — how  and  from  whom  acquired. 

55.  Same  continued — federal  grant. 

56.  Same  continued — what  is  granted. 

57.  Statutes  defining  what  are  post-roads,  etc. 

58.  Must  comply  with  conditions — character  of. 

59.  Scope  and  effect  of  act — statute  p  rmissive  only. 

60.  State  cannot  prohibit  company  from  doing  business  therein 

on  compliance  with  said  act. 

61.  Same  continued — exception  to  power — police  regulations. 

62.  Does  not  interfere  with  right  to  compensation. 

63.  Same  continued — reason  of  rule. 

64.  Same    continued— along    railroads— compensation,    when    al- 

lowed. 

65.  Same  continued — compensation    to    road — reason    for    allow- 

ing. 

66.  Same  continued— the  act  does  not  affect  the  right    to    com- 

pensation. 

67.  Same  continued— right  acquired  by  agreement. 

68.  Same  continued — executive  use — cannot  be  acquired. 

69.  Same    continued— different    rule    when    grant    from    United 

States. 

70.  Condemnation  proceedings — must  be  under  state  statutes. 

71.  Act  otherwise  considered. 

72.  State  grants. 

73.  On  railroad, 

74.  Same  continued— conditions  not  to    interfere    with    running 

trains. 

75.  Same  continued — award. 

76.  Canal — under  same  statutes. 

77.  The  term  "highway"  embraces  city  streets. 

78.  Conditions  of  grantee. 

§  50.     Definition. 

Ir  wotiM  !•(■  ].!■.. |»cM\  ill  c.ui.-i.lerini:  ilic  ti'viii  -riiilit  of  way"  and  the 
aecoiiii.aiiviuiiiiicl.lciits  thcvciuulcr.to  tiv>t  li'ani  whatis  meant  by  such 
a  term.    .V  ••ri-ht  .if  way."  as  ■.^^^\\vd  to  trli-rapli  and  telephone  com- 

(55) 


56  TELEGRAPH   AXD    TELEPIIOXE    COMi'AMES.  [<§    50 

panies,  is  the  right  held  by  these  companies  in  the  hmd  on  which  their 
poles,  gnvs  and  other  similar  appliances  are  erected ;  and  that,  to  a 
certain  extent,  over  which  their  wires  are  strung.  The  exact  property 
a  telegraph  or  telephone  company  has  to  the  land  npon  and  over 
which  its  lines  are  constructed  is  not  the  same  at  all  points.  That 
which  is  possessed  by  them  depends  upon  the  manner  in  wdaich  the 
right  was  acquired;  whether  by  purchase,  by  grant,  or  by  the  exer- 
cise of  the  right  of  eminent  domain.  If  the  right  is  acquired  by  either 
of  the  first  two  ways,  it  wall  be  determined  by  the  terms  of  the  con- 
veyance or  patent ;  as,  when  a  deed  is  made  to  one  of  these  companies 
in  which  the  right  of  way  is  described  by  metes  and  bounds,  the  exact 
property  conveyed  to  the  company  will  depend  upon  the  construction 
of  the  deed.  In  the  latter  case  the  company  would  only  possess  an 
easement,  the  fee  remaining  in  the  original  owner,  except  where  it  is 
otherwise  provided  by  statute. 

§  51.    Interest  in  land  acquired. 

It  seems  veiy  clear  that  the  company,  unless  it  is  so  expressed  in 
the  deed  or  patent,  should  not  have  the  same  interest  in  the  land  ly- 
ing between  the  poles  and  in  the  land  over  which  the  wires  are  stretch- 
ed, as  it  has  in  that  on  which  the  poles  are  erected.  It  is  very  true, 
unless  the  wires  are  strung  near  the  surface  of  the  ground,  that  the 
company  has  little  use  for  this  land  between  the  poles  and  its  use  for 
former  or  other  purposes  is  in  no  wise  prevented,  whether  it  lies  along 
the  public  highway  or  over  private  property.^  We  presume  that  there 
is  no  question  but  that  it  could  be  described  in  the  deed  so  as  to  make 
a  conveyance  of  it:  but  the  question  is,  is  the  right  of  way  over  this 

^A  telegraph     company  by  a     judg-  struct  or  repair  the  line,  to  enter  upon 

ment  condemning  land   for  its  use  un-  the   strip   condemned,     doing    as     little 

der  the  eminent  domain  Act   does  not  damage  as  possible.     1"lie  com|);niy  can 

acquire     the     fee    to    the    land   or   the  not  cultivate  such  strip,  or  take  e.xclu- 

right  to  use  it  for  any  other  purpose  sive    pos.session    of    it    or   enjoy    it    for 

than  to  erect  telegraph  poles  and  sus-  any  other  purpose,     'i'iie  only  exclusive 

pend    wires   upon   them    and    maintain  right  of   occu])ancy     the   cunipany     ac- 

and   repair   the     same,     and   use     the  quires   is   the   ground   occupied   by   the 

structure  for  telegraph  purposes.     This  poles   erected   for   telegraphic  jmrposes. 

of  course,  gives  the  company  the  right  i.ockie   v.   Aiiitnal    l'.  T<'1.   f'o..   103    111 

at   all   times    when    necessary,    to    con-  401. 


§    5o]  KIGHT   OF   WAV.  57 

land  coiiNevetl,  or  at  least  is  the  same  interest  therein  conveyed  as 
that  on  which  the  poles  are  erected,  when  its  metes  and  bounds  are  not 
expressly  stated  ?  We  answer  the  question  in  the  negative.  It  is 
not  like  the  right  of  way  of  a  railroad,  since  it  is  absolutely  necessary 
for  the  latter  to  have  the  same  interest  in  all  the  land  on  which  its 
bed  or  embankment  is  built.  In  the  case  of  a  telegraph  or  telephone 
company,  the  land  is  of  no  use  whatever  to  the  company  except  to  go 
upon  for  the  purpose  of  constructing  and  keeping  its  lines  in  repair ; 
and  when  it  is  used  for  this  purpose,the  adjoining  land  as  well  as  this, 
is  almost  as  often  used.^ 

§  52.     Same  continued — compensation. 

Both  state  and  federal  constitutions  provide  that  private  i)roperty 
shall  not  be  taken  for  public  use  without  just  compensation  first  being 
made  to  the  owner  thereof,  or  secured  to  be  made.  This  is  a  right 
given  to  every  individual  by  the  supreme  law  of  the  land  for  the  pro- 
tection of  his  property,  and  without  which  he  would  be  living  in  a 
state  of  nature,  harassed  and  annoyed  by  his  pilfering  neighbors.  It 
follows,  therefore,  that  before  a  telegraph  or  telephone  company  can 
acquire  a  legal  right  of  way,  it  must  obtain  the  right  either  by  deed, 
by  patent,  by  prescription,  or  by  payment  of  damages  after  proper 
condemnation  proceedings;  and  if  one  of  these  companies  acquires 
the  right  of  w-ay  not  according  to  one  of  these  methods,  it  will  be 
prima  facie  guilty  of  trespass,  and  the  owmer  of  the  land  may  there- 
fore maintain  an  action  of  damages  or  ejectment  at  his  election. 

§  53.    Same  continued — owner  not  estopped. 

In  many  cases  telegraph  and  telephone  companies  enter  upon  the 
land  of  another  Avithout  the  latter's  knowledge  or  consent;  but  the 
fact  that  they  do,  or  that  he  permitted  them  to  do  so,  does  not  give 
the  company  a  title  to  a  right  of  way  or  estop  him  from  maintaining 
an  action  f<>r  damages  ;•'  and  yet,  it  may  pn^dnde  him  from  main- 

=  Lackio   v.    Mutual    l'.    Tel.    Co..    lO:?  Mauliattiui    \\.    Co..    122n    X.    Y.    1.    10 

111.   401.  Aui.    St.    Kop.    461.    11    L.   11.   A.    ti;Uii : 

'Baslifilod   V.    F.iuiiirc      St.    Tol.    Co..  lirownson  v.  Albion  Tol.  Co.,  93  X.  \\'. 

IS    X.    Y.    Snpp.      250;    Alu-nclroth      v.  201.  CO  1..   K.   .\.  420:   :\lax\v«'!l  v.  Con- 


5S  TELEGRAPH    AND    TELEPHONE    COMPANIES.  [§    53 

taiuiiig  an  action  of  ejectment."*  The  mere  failure  of  the  landowner  to 
order  the  company  off  of  his  land,  or  to  hring  an  action  against  it  as  a 
trespasser  until  near  the  end  of  the  statute  of  limitation,  will  not  op- 
erate as  a  consent  to  its  use  and  occupation ;  but  an  unreasonable  de- 
lay in  such  a  case,  in  insisting  upon  damages,  will  be  considered  a 
waiver  of  damages  by  the  owner.  And  should  he  stand  by  until  the 
line  is  completed  and  in  operation  and  public  interest  has  become  in- 
volved, he  will  be  denied  the  right  to  maintain  an  action  of  eject- 
ment, or  the  right  to  enjoin  them.  His  only  remedy  under  such  cir- 
cumstances is  a  proceeding  brought  to  recover  damages. 

§  54.    Further  considered — how  and  from  whom  acquired. 

Hax'ing  briefly  considered  the  nature  and  meaning  of  the  term 
"right  of  way,"  we  shall  now  apply  ourselves  to  a  somewhat  lengthy 
discourse  on  the  subject  of  the  sources  from  which  the  right  of  way 
may  be  acquired,  and  the  manner  in  which  it  is  acquired  under  each. 
But  in  treating  these  two — that  is,  the  sources  from  which  the  right 
of  way  may  be  acquired,  and  the  manner  in  which  it  is  acquired  un- 
der each — we  shall  consider  them  together  as  nearly  as  possible.  There 
are  several  different  sources  from  which  a  right  of  way  may  be  ac- 
quired. As  for  instance,  it  may  be  acquired  by  a  gi*ant  from  the 
government  or  a  federal  grant ;  or  by  a  state  grant ;  or  by  a  municipal 
grant ;  or  by  an  agreement  with  the  o^mer  of  the  land,  when  it  is  over 
]>rivate  land ;  or  by  a  contract  with  a  railroad  company,  when  it  is  to 
be  constnicted  along  its  roadbed.  And  first  among  these  different 
sources  to  be  discussed,  we  shall  take  up  the  subject  of  a  federal 
grant. 

§  55.     Same  continued — federal  grant. 

We  now  come  to  the  subject  of  a  right  of  way,  acquired  by  a  tele- 
graph company  by  a  grant  from  the  government;  but  before  entering 
into  the  subject,  we  shall  say  a  few  things  in  regard  to  the  nature  of 

tral    Dist.,    etc.,    Tel.    Co.,    57    W.    Va.  *  Daflings  v.  Pittsburg,  etc.,  Tel.  Co., 

121;  Omaha  v.  Flood,  57  Neb.  124,  77  ?>  Pits.  Leg.  J.  U.  S.  (Pa.)  37,  14  York 
N.  W.  379.  Lf-'.  Rec.    (Pa.)    40. 


§    56]  '  EIGHT  OF  WAY.  59 

a  federal  graul.  It"  our  fellow-lawyer,  while  reading  tlii.s  work,sbould 
become  bored  by  a  constant  discourse  of  every  subject  wliicb  is  seem- 
ingly worthless  to  him  in  the  ])r(S(iit  case,  and  apparently  foreign  to 
the  nuitter  at  issue,  we  only  beg  to  humbly  bow  most  graciously  and 
apologize  by  saying  that  Avliile  it  may  appear  this  way,  we  have 
deemed  it  best  to  deprive  him  of  some  of  his  time  and  pleasure  in  or- 
der that  he  may  be  the  more  able  to  understand  and  appreciate  those 
legal  principles  which  are  to  follow.  A  federal  grant,  broadly  stated, 
is  a  conferring,  by  the  federal  government,  of  a  franchise  by  charter, 
in  which  certain  rights  are  given  to  a  corporation  not  enjoyed  as  of 
conmion  right;  or  a  mode,  or  act  of  creating  a  title  or  interest  in  any 
person  or  coi-poration  to  land  which  had  previously  belonged  to  the 
granting  power.  In  the  present  instance,  it  will  Ix'  our  purpose  to 
consider  the  first  part  of  this  definition — a  franchise  conferred  upon 
a  corporation.  There  is  a  difference  between  a  grant  from  our  gov- 
ernment and  one  from  the  crown  with  respect  to  the  power  of  revoca- 
tion. With  us,  the  grant  is  an  executed  contract  made  by  the  gov- 
ernment as  one  party  to  the  contract  and  the  corporation  as  the  other ; 
neither  can  rescind  or  revoke  the  contract  without  the  other's  con- 
sent, unless  the  right  has  been  reserved  in  some  manner,  or  except 
for  special  causes  and  by  the  process  of  law.^  ]^o  law  can  be  passed 
by  the  supreme  lawmaking  power  which  would  in  effect  annul  or  re- 
voke the  gi-ant,  as  each  individual  has  a  constitutional  guarantee  that 
no  law  shall  be  passed  which  would  impair  the  obligation  of  any  of 
his  contracts.  While  grants  from  the  cro^\•n  may  be  avoided,  upon 
three  grounds :  First,  where  the  crown  professes  to  give  a  gi*eater  es- 
tate than  it  possesses  in  the  subject-matter  of  the  grant ;  second,  where 
the  same  estate  or  part  of  same  estate  has  already  been  granted  to 
another ;  and  third,  where  the  crown  has  been  deceived  in  the  consid- 
eration expressed  in  the  grant.^ 

§  56.     Same  continued — what  is  granted. 

A  federal  grant  of  a  right  of  way  to  a  t('l('gra])h  company  is  an 
easement  or  privilege  conferred  thereon  for  a  valuable  consideration, 

"^  Duncan    v.    ]'.oar(l.    2    X.    &    ^^.     (S.  "  Cladstono    v.    Karl    of    Sandwich.    5 

Car.)  400;  Nichols  v.  Ilnhhard.  5  yi.  &  G.  P95.  12  L.  J.  C.  P.  41.  See 
\V\ch.    (S.   Car.)    207.  Com'th  v.  r.olcy.  1   Weekly  Xotcs   (Pa.) 

303. 


60 


TELEGKAPII  AXD  TELEPHONE   COMPANIES. 


[^  56 


after  certain  coiKlitions  are  complied  with,  to  construct  and  operate 
a  line  of  wires  over  lands  in  which  it  has  a  fee  simple  title.  By  an 
early  act  of  Congress,  and  supplemental  legislation  thereto,  a  right  of 
way  was  granted  to  telegTaph  companies,  over  public  lands  and  all 
military  and  post-roads  of  the  United  States,  after  complying  with 
certain  conditions  therein  prescribed."^  There  is  no  question  as  to 
the  constitutionality  of  these  laws  as  they  were  enacted  under  the 
power  given  Congi'css  to  control  interstate  commerce. 

§  57.     Statutes  defining  what  are  post-roads,  etc. 

Similar  statutes  have  been  passed  defining  what  shall  be  post-roads, 
and  within  the  term  are  included  all  letter  carriers  or  free  delivery 
routes,^  and  all  railroads  or  parts  of  railroads  over  which  mails  are 
carried. °     Thus  the  streets  of  the  District  of  Columbia    are    ^'post- 


'  United  States  statute  authorizing' 
occupation  of  Post  Roads  by  telegraph 
lines,  U.  S.  Rev.  Stat.,  §§5263-5268; 
14  U.  S.  Stat,  at  Large  221;  Act  of 
July  24,  1866.  "Any  telegraph  com- 
pany organized  under  the  laws  of  any 
state,  shall  have  the  right  to  construct, 
maintain  and  operate  telegraph  lines 
over  any  part  of  the  public  domain, 
over  and  along  any  of  the  military  or 
post  roads  of  the  United  States,  and 
under  or  across  any  of  its  navigable 
streams  r>r  waters;  provided  such  lines 
are  not  so  placed  as  to  obstruct  navi- 
gation, or  interfere  with  the  proper  use 
of  the  military  or  post  roads."  U.  S.  Rev. 
Stat.,  §  5263.  "Any  such  company  may 
take  from  the  public  lands  through 
which  its  line  passes  the  necessary 
stone,  timber  and  other  materials  for 
its  poles,  stations  or  other  needful  uses 
in  constructing  its  line,  and  pre-empt 
such  portion  of  the  unoccupied  puljl  it- 
land  as  may  l)e  necessary  for  its  sta- 
tions, not  exceeding  forty  acres  for 
each    station:    sucli    stations   to   be   not 


witliin  fifteen  miles  of  each  other."  U. 
S.  Rev.  Stat.,  §5264.  The  Act  of 
:\Iarch  3,  1901,  c.  832,  providing  for 
grants  to  telegraph  companies  of  fran- 
chises in  the  Indian  Territory  necessa- 
rily annulled  all  previous  conflicting 
grants  made  by  any  of  the  Indian  na- 
tions. Muskogee  Nat.  Tel.  Co.  v.  Hall, 
55  C.  C.  A.  208,  118  Fed.  Rep.  382, 
disapproving  Muskogee  Nat.  Tel.  Co.  v. 
Hall  (Ind.  Ter.  1901)  64  S.  W.  600. 
By  Act  of  Congress  of  March  3,  1901 
(31  U.  S.  Stat.  L.  1084),  the  secretary 
of  the  interior  is  given  full  authority 
to  grant  of  rights  of  way  to  telegraph 
lines  in  the  territory  and  no  line  may 
he  constructed  there  ^\ithout  authority 
from  him:  Muskogee  Nat.  Tel.  Co.  v. 
Hall    (Ind.  Ter.,   1901),  64  S.  W.  600. 

*Act  of  Congress,  June  18,  1872;  U. 
S.  Rev.  Stat.,  §3964.  See  Toledo  v. 
West.  U.  Tel.  Co.,  107  Fed.  Rep.  10. 
46  C.  C.  A.   111. 

"Act  of  Congress,  June  IS,  1872:  I  . 
S.  llov.  Stat.,  §3964.  See  case  cited 
ill  note  8. 


<§.    58]  RIGHT   OF  WAY.  61 

roads"  within  the  iiuaiiing  of  the  statute.^"     It  supersedes  all  con- 
flicting state  legislation  on  the  same  subject.^^ 

§  58.     Must  comply  with  conditions — character  of. 

iSTo  telegraph  company  acquires  any  rights  under  these  statutes  un- 
til it  has  filed  with  the  postmaster-general  its  written  acceptance  of 
all  the  conditions  therein  imposed.^-  This  question  was  settled  in  a 
case  in  which  a  telegraph  company,  in  the  exercise  of  the  right  of  em- 
inent domain,  instituted  a  proceeding  to  condemn  and  appropriate 
so  much  of  a  bridge,  which  was  built  across  a  navigable  river  in  pur- 
suance of  state  and  national  legislation,  as  was  necessary  to  support 
a  line  of  wires  proposed  to  be  built  thereon,  and  for  the  construction, 
maintenance  and  operation  of  same.  The  company  owning  the  bridge, 
claiming  that  the  condemnation  proceeding  was  without  autliority  of 
law,  brought  an  action  to  enjoin  the  construction  of  such  lines.  The 
court  held  in  this  case  that  before  the  company  could  exercise  tlic 
right  of  eminent  domain  with  respect  to  the  crossing  of  the  bridge,  it 
would  be  necessary  to  file  a  written  acceptance  of  all  the  conditions 
of  these  statutes. ^^  The  obligations  and  restrictions  to  be  accepted 
are  important  in  their  character;  one  of  which  is  that  the  telegraph 
line  should  be  so  constructed  and  operated  as  not  to  obstruct  the  nav- 
igable streams  and  waters,  or  interfere  with  travel  on  military  roads.  ^^ 
Congress  has  intervened  and  has  seen  fit  to  make  the  filing  of  a  writ- 
ten acceptance  an  essential  prerequisite  to  the  building  of  a  telegraph 
line  over  a  navigable  stream,  and  to  the  enjoyment  of  the  privileges 


'"  Hewett   V.    West.      U.    Tel.    Co.,      4  al"  of  the  restrictions  and  obligations 

Maekay.(D.  C),  424.  required.    U.  S.  Rev.  Stat.,  §5263. 

"Pensacola  v.   Tel.   Co.  v.  West.   U.  '» Pacific,   etc.,   Tel.    Co.   v.    Chicago, 

Tel.   Co.,   2   Woods    (U.    S.)    643,   aff'd  etc.,  Bridge  Co..  3fi  Kan.   113,   12  Pac. 

9G   U.   S.   1;   West.  U.  Tel.   Co.  v.  At-  535. 

lantic.  etc.,  Tel.  Co..  5  Nev.  102.  Com-  »U.  S.  Rev.  Stat.,  §5263.  In  con- 
pare  West.  U.  Tel.  Co.  v.  New  York,  structing  a  line  on  a  draw  bridge,  the 
3S  Fed.  552,  3  L.  R.  A.  449.  line  should  be  constructed  so  as  not  to 

'-  "Before  any  telegraph  company  ex-  interfere  with  the  opening  of  the  draw 

ovcising  any  of  the  poAvers  and  privi-  span  of  the  bridge,     or  otherwise  ob- 

leges  conferred,  it  shall  file  its  written  struct   navigation.      Pacific   Mut.     Tel. 

ucceptanoe  with  the  post-master  gener-  Co.    v.    Chicago,    etc..    Bridge    Co.,    36 

Kan.   113,   12  Pac.   535. 


62  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  ["§»    58 

conferred  by  that  act;  and  its  autlioritj  is  paramount. ^^  Before  it 
can  constiiK't  a  line  of  wires  across  a  navigable  stream,  it  must  first 
have  obtained  the  grant  from  Congress  under  these  acts;  with  all  of 
which  conditions  it  must  comply.  And  should  a  line  of  wires  be  con- 
structed along  the  bed  of  a  navigable  stream,  without  filing  a  written 
acceptance  of  the  conditions  stated  in  these  statutes,  and  a  steamer 
should  be  damaged  by  its  anchor  having  been  caught  in  the  wires,  the 
company  will  be  liable  for  damages. -^^ 

§  59.    Scope  and  effect  of  act — statute  permissive  only. 

It  is  held  that  this  statute  is  permissive  only:*  and,  that  there  is 
nothing  in  it  which  would  imply  that  the  permission  to  extend  its 
lines  along  roads,  not  built  or  owned  by  the  United  States,  or  over  and 
under  navigable  streams ;  or  over  bridges  not  built  or  owned  by  the 
federal  government,  carries  with  it  any  exemption  from  ordinary  bur- 
dens of  taxation.  It  may  also  be  affirmed  that  it  carries  with  it  no 
exemption  from  the  ordinaiy  burdens  which  may  be  cast  upon  those 
who  would  appropriate  to  their  exclusive  use  any  portion  of  the  pub- 
lic highway.^" 

§  60.     State  cannot  prohibit  company  from  doing  business  therein 
on  compliance  with  said  act. 

The  state  cannot  therefore  by  any  specific  statute  prevent  a  tele- 
graph company  from  placing  its  lines  along  military  and  postroads; 
or  stop  the  use  of  it  after  it  has  been  placed  there,  after  the  company 
has  complied  with  all  the  conditions  of  the  statute. -"^^  The  power  of 
Congress  to  grant  to  these  companies  the  right  of  way  over  these  roads 
and  across  public  lands  is  absolute,  and  this  power  is  acquired  by  the 
authority  conferred  in  Congress  to  regulate  interstate  commerce ;  any 
law  of  a  state  which  obstructs  or  burdens  interstate  commerce,  or  hin- 

""Hewett     V.    West.    U.  Tel.    Co.,    4  inond   v.   Southern   Bell   Tel.,   etc..   Co., 

Mackay    (D.  C.)    424.  174   U.  S.  761,  19  S.  Ct.  Rep.  778. 

^'Rickmond,   4.3   Fed.   85.  "St.  Louis  v.  West.  U.  Tel.  Co.,  148 

*St.   Louis   V.   W.    U.   Tel.    Co.,    148  U.   S.  92,   13   S.  Ct.  Rep.  485. 

U.  S.  102;  Pensacola  Tel.  Co.  v.  West.  «West.  U.  Tel.  Co.  v.  Att.-Gen.,  125 

U.  Tel.  Co.,  96  U.  S.  1 ;  West.  U.  Tel.  U.  S.  530,  8  S.  Ct.  Rep.  961,  quoted  in 

Co.  V.  Att.-Gen.,   125  U.  S.  548;   Rick-  St.  Louis  v.  West.  U.  Tel.  Co.,   148  U. 

S.  102. 


§    62]  RIGHT   OK   WAY.  63 

ders  the  regular  aiul  legal  adiiiiuistralion  of  the  govcrimieiit  must  be 
held  to  be  unconstitutioual  and  void.'''  This  act  of  Congress  super- 
sedes all  couflictiug  state  legislation  <>ii  llic  same  subject.-" 

§  61.    Same  continued — exception  to  power — police  regulations. 

These  statutes  do  not  deprive  the  state  of  its  police  power.-'  While 
they  may  operate  to  prevent  the  state  or  any  of  its  municipalities 
from  an  arbitraiy  or  absolute  exclusion  of  a  telegraph  company, 
which  has  complied  with  this  provision,  from  any  post-road,--  yet, 
they  do  not  affect  the  rights  of  the  state  or  its  agency  to  regulate  the 
use  of  streets  and  highways  by  such  companies.^^  For  instance,  the 
streets  in  a  town  are  included  in  the  term  "post-roads,"  and  the  au- 
thority therein  could  not  exclude  a  telegraph  company  from  entering 
u]:)on  its  streets;  yet,  it  could  regulate  the  size  and  location  of  the 
l)oles,  the  height  of  the  wires  and  their  location:  and  where  they  be- 
come an  obstruction  and  a  nuisance,  it  could  remove  them  or  require 
them  to  be  placed  under  the  ground  ;-^  or  it  might  impose  a  reasonable 
charge  for  the  privilege  of  erecting  and  maintaining  telegraph  lines 
along  its  streets.^^  And  a  city  ordinance  requiring  telegraph  com- 
panies engaged  in  business  within  its  corporate  limits  to  pay  a  license 
tax,  is  valid  and  can  be  enforced  notwithstanding  the  fact  that  the 
company  has  complied  with  all  the  conditions  of  such  statutes.^^  So, 
also,  the  acceptance  by  a  telegi'aph  company  of  the  in-ovisions  of  these 
statutes,  does  not  confer  any  exemption  from  taxation  for  state  pur- 
poses upon  lines  and  other  y^roperty  constructed  within  the  state.-' 

§  62.    Does  not  interfere  with  right  to  compensation. 

When  a  telegraph  company  has  acquired  a  right  of  Avay  over  the 
public  highway  by  federal  grant,  the  abutting  landowners  are  not  de- 

"Moon  V.   City   of  Eufaiila,    11     So.  Co.  v.  Chnrlotte.  03  Fed.   11:  Tdledo  v. 

921.                        '  West.  V.  Tel.  Co.   (C.  C.  A.K  107  Fed. 

^Pensacola  Tel.  Co.  v.  West.  U.  Tel.  10. 

Co.,  96  U.  S.   1  :   West.  U.  Tel.  Co.  v.  "  American,  etc.,  Tel.  Co.  v.  Hess,  125 

Atlantic,  otr..  Tol.  Co..  5  Xev.  102.  X.  Y.  041,  21  Am.  St.  Rep.  764,  13  L. 

"American,    etc.,    Tel.  Co.    v.    Iless,  R.  A.  40  10. 

125  N.  Y.  641.  13  L.  E.  A.  454n.  "St.  Louis  v.  West.  U.  Tol.  Co.,  148 

='West.  U.  Tel.  Co.  v.  Ait. -Gen..   125  L'.  S.  94,  13  S.  Ct.  Rep.  485. 

U.  S.  530,  8  S.  Ct.  Rep.  961.  =«  Moone  v.  Eufaula,  11  So.  921. 

=»  People  V.  Squire,  145  U.  S.  175,  12  -'West.   1'.  Tel.  Co.  v.  Com.,   125  U. 

S.  Ct.  Rep.  880,    affirming    107    N.   Y.  h^.  r)30,  S  S.  Ct.  Rep.  961. 
593,  1  Am.  St.  Rep.  894;  Michigan  Tel. 


64:  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§>    62 

prived  of  the  right  to  be  compensated  for  said  right  of  way ;  because 
the  land  npon  ^vhich  the  grant  is  given  is  burdened  with  an  additional 
servitude  or  because  the  easement  of  access  to  their  property  has  been 
obstructed ;  or  because  the  enjoyment  of  the  highway  has  been  inter- 
fered with.-^  The  reasons  why  the  abutting  landowner  should  be 
entitled  to  this  compensation  have  been  very  ably  given  by  Judge 
Brewer,  and  as  the  same  could  not  be  more  logically  given,  it  will  be 
our  pleasure  to  quote  what  he  has  to  say  in  regard  to  this  matter. 

§  63.     Same  continued — reason  of  rule. 

"It  is  a  misconception,  however,  to  suppose  that  the  franchise  or 
privilege  granted  by  the  act  of  1866  carries  with  it  the  unrestricted 
right  to  appropriate  the  public  property  of  a  state.  It  is  like  any 
other  franchise,  to  be  exercised  in  subordination  to  public  as  to  pri- 
vate rights.  While  a  grant  from  one  government  may  supersede  and 
abridge  franchises  and  rights  held  at  the  will  of  its  grantor,  it  cannot 
abridge  any  property  rights  of  a  public  character  created  by  the  au- 
thority of  another  sovereignty,  l^o  one  would  suppose  that  a  franchise 
from  the  federal  government  to  a  corporation,  state  or  national,  to 
construct  interstate  roads  or  lines  of  travel,  transportation,  or  com- 
munication, would  authorize  it  to  enter  upon  the  private  property  of 
an  individual,  and  appropriate  it  without  compensation.  No  matter 
how  broad  and  comprehensive  might  be  the  terms  in  which  the  fran- 
chise was  granted,  it  would  be  confessedly  subordinate  to  the  right  of 
the  individual  not  to  be  deprived  of  his  property  without  just  com- 
pensation. And  the  principle  is  the  same,  when  under  the  grant  of  a 
franchise  from  the  national  government,  a  corporation  assumes  to  en- 
ter upon  property  of  a  public  nature  belonging  to  a  state.  It  would 
not  be  claimed,  for  instance,  that  under  a  franchise  from  Congress  to 
construct  and  operate  an  interstate  railroad  the  grantee  thereof  could 
enter  upon  the  statehouse  grounds  of  the  state,  and  construct  its  depot 
there,  without  paying  the  value  of  the  property  thus  appropriated. 
Although  the  state-house  grounds  be  property  devoted  to  public  uses, 
it  is  property  devoted  to  the  ])nblic  uses  of  the  state,  and  property 

^^Kester  v.  West.  U.  Tel.  Co.,  108 
]-"ed.  926;  Philips  v.  Postal  Tel.  Cable 
Co.,  13fi  N.  C.  513,  41   S.  E.  1022. 


§    64]  RIGHT  OF   WAY,  65 

whose  ownership  and  control  is  in  the  state,  and  it  is  not  within  the 
competency  of  the  national  government  to  dispossess  the  state  of  such 
control  and  use  or  appropriate  the  same  to  its  own  benefit,  or  the 
benefit  of  any  of  its  corporations  or  grantees,  without  suitable  com- 
pensation to  the  state.  This  rule  extends  to  streets  and  highways; 
they  are  the  public  property  of  the  state.  While  for  purposes  of 
travel  and  common  use  they  arc  open  to  the  citizens  of  every  state 
alike,  and  no  state  can  by  its  legislation  deprive  the  citizens  of  an- 
other state  of  such  common  use,  yet  when  an  appropriation  of  any 
part  of  this  public  property  to  an  exclusive  use  is  sought,  whether  by 
citizen  or  a  corporation  of  the  same  or  another  state,  or  a  corporation 
of  a  national  government,  it  is  within  the  comi)etency  of  the  state,rep- 
resenting  the  sovereignty  of  that  local  public,  to  exact  for  its  benefit 
compensation  for  this  exclusive  appropriation.  It  matters  not  for 
what  that  exclusive  appropriation  is  taken,  whether  for  steam  rail- 
roads or  streets  railroads,  telegraph  or  telephones,  the  state  may,  if  it 
choose,  exact  from  the  party  or  corporations  given  such  exclusive 
use,  pecuniary  compensation  to  the  general  public  for  being  deprived 
of  the  common  use  of  the  portion  thus  appropriated." -'^ 

§  64.     Same  continued — along  railroads — compensation,  when  al- 
lowed. 

For  the  same  reason  given  above,  a  telegraph  company  cannot  ac- 
quire a  right  of  way  along  and  upon  the  right  of  way  of  a  railroad 
company  without  first  compensating  the  landowner  or  the  railroad 
company.  This  act  of  Congress  is  permissive  only,  and  the  manner 
in  which  the  right  of  way  is  acquired  by  the  condemnation  proceed- 
ings is  left  with  the  laws  of  the  state  in  which  the  road  is  located.  In 
some  instances,  a  railroad  company  constructs  a  line  of  wires  along  its 
roads  for  it^^  own  conveniences  in  carrying  out  the  business  of  the 
company,  such  as  the  giving  of  orders  and  doing  all  other  business 
necessary  for  the  discharge  and  performance  of  its  duties.  When 
such  is  the  case,  the  owner  of  the  fee,  if  such  may  still  be  in  him,  will 
not  be  entitled  to  an  additional  compensation  for  the  right  of  way ; 
but  if  the  line  is  built  by  any  other  corj>orntion,  bv  any  kind  of  an 

™St.  Louis  V.  West.  U.  Tel.  Co..  148 
U.  S.  02,  13  S.  Ct.  Rep.  485. 
T.  &  T.— 5 


66  TELEGRAPH  AND  TELEPHONE  COMPANIES.  ['§'64 

agTeement  entered  into  by  the  railroad  and  such  corporation,  the 
owner  of  the  fee  will  be  entitled  to  additional  compensation,  notwith- 
standing the  fact  that  the  telegraph  company  will,  in  connection  with 
its  other  corporate  business,  render  to  the  road  the  same  services  it 
would  have  obtained  had  the  line  belonged  to  the  road,  and  had  been 
built  by  it  for  its  own  convenience,  provided  it  is  not  used  exclusively 
for  the  benefit  and  convenience  of  the  road.^*^ 

§  65.     Same  continued — compensation  to  road — reason  for  allow- 
ing. 

The  interest  which  a  railroad  company  has  to  its  right  of  way,  re- 
gardless of  the  manner  in  which  it  is  acquired,  entitles  it  to  be  com- 
pensated by  any  telegraph  company  which  condemns  so  much  of  said 
road  as  may  be  necessary  for  a  construction  of  a  line  of  its  wires 
thereon,  unless  it  is  otherwise  agreed  to  by  the  two  companies;  and 
this  right  is  not  affected  in  anywise  by  this  act  of  Congress.  Every 
citizen  has  a  right  guaranteed  by  the  fundamental  law  of  our  land, 
that  he  shall  not  be  deprived  of  any  of  his  property  rights  without  a 
due  compensation  therefor,  detemiined  by  proper  legal  proceedings; 
and  it  is  upon  this  guarantee  to  every  American  citizen  in  the  se- 
curity and  protection  of  his  property  rights,  which  has  formed  and 
concentrated  our  government  into  one  invulnerable  unit  and  made  it 
the  grandest,  the  proudest  and  most  powerful  nation  of  the  world. 
For  the  same  reason  that  the  property  of  a  private  person  could  not 
be  taken  against  his  consent  by  any  corporation  or  body  of  persons 
without  first  paying  him  a  due  consideration  for  same,  the  property 
rights  of  any  corporation  cannot  be  legally  acquired  by  any  other 
corporation  or  body  of  persons  without  paying  or  tendering  to  said 
corporation  a  due  compensation  for  said  rights.  Under  our  laws,  a 
corporation  is  a  citizen  and  is  protected  in  the  security  of  its  property 
the  same  as  a  private  individual.  While  a  railroad  may  not  have  the 
same  interest  to  the  land  on  which  its  road  is  located  as  that  pos- 
sessed by  an  individual  to  his  land,  it  nevertheless  has  an  interest  in 
this  land  or  right  of  way  for  the  purpose  of  carrying  out  its  cor- 
porate business,  paramount  to  any  other  person  or  corporation,  and 

*»Am.  TpI.,  etc..  Co.  v.  Smith,  71  Md. 
535,  18  Atl.  018,  7  L.  R.  A.  200. 


§    QQ^  RIGHT  OF  WAY.  67 

therefore  has  the  same  right  to  be  protected  and  secured  in  this  right 
that  an  individual  has  to  his  private  property.  No  one  would  pre- 
sume to  say  that  a  telegTaph  or  telephone  company  could  construct  a 
line  of  its  wires  over  and  across  the  property  of  an  individual  against 
his  consent  without  first  compensating  him  for  said  right ;  for  he  is 
as  secure  from  the  depredation  of  his  property  in  this  respect  as  by 
any  other  known  way.  This  is  his  guaranteed  right.  There  may  be 
other  ways  in  which  the  right  of  way  of  a  railroad  company  may  be 
used  by  other  corporations  or  private  citizens,  but  there  is  no  way  in 
which  it  is  so  often  used  and  subjected  as  for  telegraph  companies 
whose  wires  are  strung  from  one  end  of  the  road  to  the  other,  and  on 
every  road  of  any  consequence ;  and  to  say  that  these  telegraph  com- 
panies should  not  compensate  the  railroad  company  for  the  use  of  its 
easement,  would  be  unreasonable,  unjust  and  would  not  protect  the 
railroad  in  this  guaranteed  right. 

§  66.     Same  continued — the  act  does  not  affect  the  right  to  com- 
pensation. 

Most  all  of  our  lands  were  originally  acquired  either  directly  or  in- 
directly by  grant  from  the  United  States  and,  by  a  technical  meaning 
seldom  considered,  the  paramount  title  to  which  was  never  granted, 
but  for  certain  purposes  and  reasons  it  might  under  certain  circum- 
stances revert  back  to  the  original  owner  or  grantor.  It  matters  not 
what  technical  constructions  may  be  placed  on  these  grants  from  the 
government  there  is  not  the  least  possible  or  the  remotest  doubt  but 
that  the  gTantees  of  these  lands  have  acquired  all  the  right,  title  and 
interest  in  said  grants  to  make  them  absolutely  perfect  and  sound  in 
every  possible  respect  and  superior  to  all  other  claims  or  demands, 
except  such  as  may  fall  under  the  police  power,  or  such  as  may  be 
necessary  to  carry  on  the  affairs  of  the  public.  "While  there  may  be 
a  distinction  between  a  grant  of  these  lands  and  a  grant  of  a  right  of 
way  to  a  railroad  company,  in  that  the  fee  may  not  always  be  granted 
to  the  latter;  yet,  it  is  not  to  be  presumed  that  Congress  made  such 
grants  without,  also,  giving  them  the  right  to  demand  compensation 
for  their  rights  of  M'ay  when  condemned  by  telegraph  companies. 
And,  so,  it  is  held  that  telegraph  companies  must  obtain  the  consent 
of  the  owners  of  the  right  of  way,  or  condemn  the  same  for  telegraph 


68  TELEGRAPH  AICD   TJiLEPlIONE   COMPANIES.  [§    60 

purposes  aiij  make  coinpensation  tberefor.^^  As  was  said  by  an  emi- 
nent judge :  ''We  cannot  suppose  it  was  the  intention  of  Congress  bv 
these  enactments,  even  if  it  had  the  power  to  do  so,  to  put  the  right  of 
way  of  every  railroad  company  in  the  country  at  the  mercy  of  the 
telegraph  companies,  and  allow  the  latter  to  use  them  for  the  con- 
struction of  their  lines,  without  making  compensation  to  any  one 
therefor."  "- 

§  67.    Same  continued — right  acquired  by  agreement. 

It  is  not  always  necessary  that  a  condemnation  proceeding  be  in- 
stituted in  order  for  a  telegraph  company  to  acquire  a  right  of  way 
over  the  private  property  of  an  individual,  for  it  may  acquire  the 
right  by  his  consent  or  by  an  agreement  entered  into  with  him.  The 
same  rule  of  law  may  be  applied  to  the  right  of  way  of  a  railroad.  It 
may  obtain  a  privilege  from  the  railroad  to  construct  its  lines  of  wires 
upon  and  along  the  right  of  way  of  the  road,^' 

§  68-     Same  continued — exclusive  use — cannot  be  acquired. 

This  act  does,  however,  prevent  a  railroad  company's  right  of  way 
from  being  exclusively  used  by  one  telegraph  company.-''-^  The  legis- 
lature of  Florida  granted  an  exclusive  right  to  a  certain  company  to 
construct  its  lines  along  the  right  of  way  of  a  railroad.  It  was  held, 
however,  that  such  a  gi^ant  was  in  conflict  with  the  act  of  CongT-ess 
which  was  specially  intended  to  secure  to  all  companies  equal  privi- 
leges and  to  prevent  monopolies,  and  that  it  could  not  stand."'' 

^HVest.   U.   Tel.   Co.   v.    Am.   W.    Tol.  ^'•■'- Ponsacola  Tel.  Co.  v.  West.  U.  Tol. 

Co.,  9  Bhs.    (U.  S.)    72;   Atlantic,  etc..  Co.,  96  U.  S.  1. 

Tel.  Co.  V.  Chicago,  etc.,  R.  Co.,  6  Biss.  ''^  Under  U.    S.   Rev.   Stat.,    §5203,  a 

(U.  S.)    159;  West.  U.  Tel.  Co.  v.  Ann  railroad    company    cannot    grant   to   a 

Arbor  R.   Co..  90  Fed.   379,   178  U.   S.  telegraph    company   the   sole     right    to 

243,  2  S.  Ct.  Rep.  867;  Southwestern  R.  construct  a  line  over  the  right  of  way. 

Co. 'v.   Southern,  etc.,  Tel.  Co.,  46  Ga.  so  as  to  exclude  other  companies  whose 

43,   12  Am.   Rep.     585;      Northwestern  lines  would  not  interfere  with  those  ot 

Tel    Exch.  Co.  V.  Chicago,  etc.,  R.  Co..  the   first  company.     West.   U.   Tel.   Co. 

76  Minn.  "334.  79  N.  W.  315.  v.   Am.   W.   Tel.   Co.,   9   Bliss.    (U.   S.) 

^'^Am.  Tel.  Co.  v.  Pearce,  71  Md.  535.  72;  West.  W.  Tel.  Co.  v.  Am.  ^^  .  Tel. 
7  L.  R.   A.  200n,  28  Am.  St.  Rep.  227.  Co.,  9  Bliss.    (U.  S.)    72. 
18    Atl.    910.     See  also,  Pensacola  Tel.  "^^  A  telegraph  company  in  Texas  can- 
Co.  v.   Wtfct.   U.   Tel.   Co.,  90  U.   S.    1.  not  acquire  by  agreement  with  a  rail- 
affirminc  2  Woods    (U.  S.)    043.  road    company    the    exclusive    right    to 


§  69] 


KIGHT   OF    WAY. 


69 


§  69.     Same  continued — different  rule  when    grant    from    United 
States. 

All  that  has  been  said  heretofore  in  regard  to  the  compensation 
paid  to  or  tendered  a  railroad  company  for  part  of  its  right  of  way 
acquired  hy  congressional  grant  for  the  use  of  telegraph  companies,  is 
applicable  only  to  telegraph  companies  which  were  organized  prior  to 
1872.  The  original  act  gave  to  telegraph  companies  the  ''right  to 
construct,  maintain,  and  operate  lines  of  telegraph  .  .  .  over 
and  along  any  of  the  military  or  post-roads  of  the  United  .States, 
which  have  been,  or  thereafter  may  be  declared  such  by  law."  ^® 
Congress  afterwards,  in  1872  declared  all  the  railroads  in  the  coim- 
try  which  are  now^  or  may  hereafter  be  in  operation  to  be  post-roads. 
When,  therefore,  a  railroad  company's  right  of  way  is  one  acquired 
by  congressional  grantsubsequent  to  this  last-mentioned  act,  the  grants 
must  be  considered  as  made  and  accepted  subject  to  the  provisions  of 
the  act  giving  the  telegraph  companies  the  right  to  occupy  and  use 
such  right  of  way  without  compensation.^" 


use  its  right  of  way  for  a  line  of  tele- 
Ejraph.  West.  U.  Tel.  Co.  v.  Baltimore 
&  0.  Tel.  Co.,  19  Fed.  660,  22  Fed.  133; 
West.  U.  Tel.  Co.  v.  Am.  W.  Tel.  Co., 
65  Ga.  160,  38  Am.  Rep.  781;  Balti- 
more, etc.,  Tel.  Co.  v.  Morgan's  Louisi- 
ana, etc.,  R.  Co.,  37  La.  Ann.  883;  Pa- 
cific Postal  Tel.  Cable  Co.  v.  West. 
IJ.  Tel.  Co.,  50  Fed.  493;  Keasley  on 
JClectric  Wires,  p.  135.  See  also  South- 
western R.  Co.  V.  Southern,  etc.,  Tel. 
Co.,  46  Ga.  43.  12  Am.  Rep.  585;  New 
Orleans,  etc.,  R.  Co.  v.  Southern,  etc., 
Tel.  Co.,  53  Ala.  211;  West.  U.  Tel.  Co. 
V.  Burlington,  etc.,  R.  Co.,  11  Fed.  1, 
3  McCrary  (U.  S.)  130.  A  railroad 
company  iiiaintaining  telegraph  wires 
granted  to  a  telegraph  company  the 
right  to  place  a  wire  on  the  poles  of 
the  railroad  company  and  to  establish 
stations  and  to  do  business  with  points 
off  the  road,  the  railroad  company  re- 
serving to  itself  the  right  to  the  local 
business.      It   was  held,  tliat  the   risht 


granted  ^ras  not  exclusive,  and  that  the 
railroad  could  put  up  and  maintain 
another  wire  for  its  own  use  or  for  the 
use  of  a  third  party.  ^Marietta,  etc., 
R.  Co.  v.  West.  U.  Tel.  Co.,  38  Ohio 
St.  24.  There  are  some  authorities 
holding  a  contrary  view  on  this  sub- 
ject. Canadian  Pacific  R.  Co.  v.  West. 
U.  Tel.  Co.,  17  Sup.  Ct.  Com.  151; 
West.  U.  Tel.  Co.  v.  Chicago,  etc.,  R. 
Co.,  86  III.  246,  29  Am.  Rep.  28;  West. 
U.  Tel.  Co.  V.  Atlantic,  etc.,  Tel.  Co.,  7 
Biss.  (U.  S.)  367.  In  view  of  the  act 
of  Congress,  a  state  cannot  grant  to  a 
telegraph  company  exclusive  rights  in 
the  right  of  way  of  anj'  railroad  within 
the  state.  "The  statute  amounts  to  a 
prohibition  of  all  state  monopolies  in 
this  particular."  Pensacola  Tel.  Co.  v. 
West.  U.  lei.  Co.,  96  U.  S.  1,  affirming 
2  Woods    (U.  S.)    643. 

^'Act  approved  July  24.  1866. 

^'  Mercantile  Transf.  Co.  v.  Atlantic, 
etc..  R.  Co.,  63   Fed.  579. 


70  TELEGRAPH  AND  TELEPHONE  COMPANIES.  \_^    70 

§  70.     Condemnation  proceedings — must  be  under  state  statutes. 

This  act  docs  not  undertake  to  provide  compulsory  proceedings  to 
condemn  part  of  the  right  of  way  of  a  railroad  for  an  easement  for 
a  telegraph  company,  but  this  right  is  left  exclusively  to  the  laws  of 
the  state  in  which  is  located  the  right  of  way  attempted  to  be  sought.^^ 
Xor  can  a  federal  court,  under  that  act,  wdth  its  equity  powers,  use  its 
injunction  process  so  as  to  effect  an  equitable  condemnation  of  an 
easement  of  a  right  of  way  over  a  railroad  along  which  it  has  con- 
structed its  line  under  a  contract  with  a  prior  owner  of  the  railroad 
whose  o^vnership  had  been  terminated  by  the  foreclosure  of  a  mort- 
gage existing  prior  to  the  contract.^^ 

§  71.    Act  otherwise  considered. 

The  act  does  not  affect  the  liability  of  the  telegraph  company  for 
damages  resulting  from  the  negligence  in  the  transmission  or  deliver- 
ing of  messages.^"  It  does  not  embrace  the  telephone  companies,^ ^ 
nor  does  it  extend  to  the  installation  by  a  regularly  organized  tele- 
graph company,  of  a  district  telegraph  system  for  the  collection 
and  distribution  of  telegraph  messages  and  for  the  operation  of  call 
boxes,  watchmen  and  police  signals,  and  the  like.^^  By  an  early  act 
of  Congress  and  supplemental  acts  thereto  subsidized  railroad  com- 
panies, known  generally  as  the  Pacific  railroads,  were  granted  rights 
of  way  over  the  public  domain  and  were  required  to  construct  and 
operate  telegraph  lines  along  their  various  routes  under  special  pro- 

^  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  West.  U.  Tel.  Co.  v.  Ann  Arbor  E.  Co., 

Co.,  96  U.  S.   1;   Postal  Tel.  Cable  Co.  178  U.  S.  243.  20  S.  Ct.  Pvep.  867,  re- 

V.  Cleveland,  etc.,  R.  Co.,  94  Fed.  234;  versing  90  Fed.  379. 

Pcstal  Tel.  Cable    Co.    v.    Southern    P.  ™  West.  U.  Tel.  Co.  v.  Ann  Arbor  R. 

Co.,  89  Fed.  190;  West.  U.  Tel.  Co.  v.  Co.    (C.  C.  A.),  90  Fed.  379. 

Penn.  R.  Co.,  123  Fed.    (C.  C.  A.)    33.  ^*West.  U.  Tel.  Co.    v.    Mellon,    100 

reversing  120   Fed.  951,    and    affirming  Tenn.  429. 

120  Fed.  362;  Postal  Tel.  Cable  Co.  v.  "  Ptichmond   v.    Southern    Bell    Tel., 

Morgan's     Louisiana,      etc.,     R.      Co.,  etc.,  Co.,  174  U.  S.  761,  19  S.  Ct.  Rep. 

49  La.  Ann.  58,  21  So.  183;   Nicoll  v.  778,  affirming  .103  Fed.  31. 

New  York,  etc.,  Tel.  Co.,  62  N.  J.  L.  ■^Toledo  v.  West.  U.  Tel.  Co..  46  C. 

133,  42  Atl.  583,  72  Am.  St.  Rep.  666,  C.  A.  Ill,  107  Fed.  10,  121  Fed.  734. 
affirming  62  X.   J.  L.    156.     See,  also, 


§    73]  RIGHT  OF   WAY.  71 

visions  with  regard  to  telegraphic  service  to  be  furnished  to  the  gov- 
ernment and  the  public."**^ 

§  72.     State  grants. 

For  the  reason  that  telcgTaph  companies  may  acquire  from  the  gov- 
ernment a  right  of  way  over  and  across  public  and  private  property 
does  not  prevent  the  state  from  making  such  grants ;  for  we  find  that 
most,  if  not  all,  of  the  states  have  passed  laws,  giving  the  right  to 
telegraph  and  telephone  companies,  under  certain  conditions  and  re- 
strictions, to  construct  and  operate  lines  upon  the  public  highways.^* 
It  will  be  seen  that  there  is  a  distinction  between  a  federal  and  a  state 
grant  with  respect  to  the  kind  of  companies  to  which  the  grant  may 
be  made.  In  the  former,  as  stated  elsewhere  the  grant  can  only  be 
made  to  a  telegraph  company,  but  in  the  latter,  it  may  be  made  to 
either  or  both  a  telegraph  or  telephone  company.  It  would  require 
much  time  and  space  to  set  forth  all  the  statutes  of  the  several  states 
on  this  subject ;  so  we  will  leave  the  reader  to  consult  the  laws  of  his 
own  state  in  regard  to  this  question. 

§  73.     On  railroad. 

In  some  states  these  statutes  confer  upon  telegraph  and  telephone 
companies  the  right  of  using  the  right  of  way  of  a  railroad  com- 
pany.^ ^  It  has  been  held  that  imder  a  statute  authorizing  telegraph 
companies  to  construct  their  lines  "along  and  parallel  to  any  of  the 
railroads  of  the  state,"  a  telegTaph  company  is  not  authorized  to  con- 

"  U.  S.  V.  Union  Pac.  II.  Co.,  160  U.  v.  Jersey  City,  49  N.  J.  L.  303,  00  Am. 

S.  1,  16  S.  Ct.  Rep.  190,  163  U.  S.  710,  Rep.  019;  Marshfield  v.  Wisconsin  Tel. 

16  S.  Ct.  Rep.  1206;  U.  S.  v.  Northern  Co.,  102  Wis.  004,  78  N.  W.  735,  con- 

Pac.  R.  Co.,   120  Fed.  546.  struing  Wis.  Rev.    Stat.,    §§1898-1778; 

"Code    of    Ala.     1896,    §§1244-2490;  State  v.  Cumberland  Tel.,  etc.,  Co.,  52 

Code  of    Tenn.    1896,    §1830;     Code  of  La.  Ann.   1411,  27   So.    795;    State    v. 

Va.   1887,     §§1287-1290,     construed     in  Flod,  23  ilo.  App.   185;    State  v.   Spo- 

Soutlicrn    Boll    Tel.,    etc..   Co.   v.    Rich-  kane,  24  Wash.  53,  63  Pac.  1116;  West, 

mond,    103   Fed.   31.    174    U.    S.    761;  U.  Tel.  Co.  v.  Williams,  86  Va.  696,  11 

Miss.  L.  1886,  p.  93,  con.strued  in  Meri-  S.  E.  103,  8  L.  R.  A.,  429n,  19  Am.  St. 

dian  v.  West.  U.  Tel.  Co.,  72  Miss.  916,  Rep.  908. 

18  So.  81,  29  L.  R.  A.  770;  Postal  Ca-  "Postal  Tel.   Cable   Co.  v.    ^Morgan's 

ble  Tel.  Co.  v.  Norfolk,  etc.,  R.  Co.,  88  Louisiana,      etc.,      R.      Co.,      49      La. 

Va.  920,  14  S.  E.  803;  Hudson  Tel.  Co.  Ann.  oS,  21  So.  183. 


72  TELEGRAPH   AXD   TELEPHONE   COMPANIES.  [<§    73 

demn  a  right  of  way  along  and  upon  the  right  of  way  of  a  railroad 
company ;  it  is  only  allowed  to  run  in  the  direction  lengthwise  of  the 
railroad,  alongside  and  equidistant  from  it  throughout  all  its  parts.*® 
While  these  statutes  are  subordinate  to  the  act  of  Congress  on  the 
same  subject,  yet  they  may  nevertheless  be  resorted  to  for  condemna- 
tion of  a  right  of  way  along  railroads  when  necessary.'*'^ 

§  74.     Same  continued— conditions  not  to  interfere  with  running 
trains.  * 

These  statutes  provided  that  telegraph  lines  shall  not  be  con- 
structed along  the  railroad  so  as  to  interfere  with  travel.  If  it  were 
not  for  this  condition  these  companies  might,  by  a  multiplication  of 
wires,  interfere  with  the  running  of  trains,  and  the  possible  falling  of 
poles  would  endanger  the  safety  of  trains.  It  has  therefore  been  ex- 
pressly stated  both  in  the  act  of  Congress  and  the  various  state  stat- 
utes on  the  subject,  that  the  lines  must  be  so  constructed  and  main- 
tained as  not  to  interfere  with  travel.  They  do  not  state  how  far  they 
shall  be  from  the  railroad,  but  it  is  an  implied  condition  on  the  part 
of  these  companies  that  the  lines  shall  not  be  so  closely  erected  to  the 
road  as  to  obstruct  the  operation  of  the  railroad. 

§  75.     Same  continued — award. 

Another  condition  required  of  a  telegraph  or  a  telephone  company 
before  constructing  a  line  of  wires  along  and  upon  a  railroad's  right 
of  way,  is  that  the  latter  must  be  compensated  for  the  use  of  its  road- 
bed by  either  of  these  companies.  While  it  is  very  clear  that  the  rail- 
road should  be  compensated  for  the  use  of  its  easement,  since,  not  to 
do  so,  would  be  against  the  constitutional  guaranty  to  every  property- 
o^\Tier,  in  that  it  would  be  depriving  it  of  its  property  without  due 
compensation ;  yet,  in  a  matter  of  this  kind,  it  is  very  difficult  to  de- 
termine how  much  should  be  awarded.  The  construction  of  the  line 
of  wires  along  a  railroad  will  occupy  with  its  poles  and  cross-pieces 
thereon,  a  right  of  way  of  the  company  of  some  eight  or  ten  feet,  but 
knowing  this  fact,  there  is  no  means  of  ascertaining  the  amount  of 

«  Postal  Tel.  Co.  v.  Norfolk,  etc.,  R.  '^Postal  Tel.  Cable   Co.   v.  Morgan's 

Co.,  88  Va.  920,  14  S.  E.  803.  Louisiana,    etc..    P.,    etc.,    Co.,  49  La. 

Ann.  58.  21  So.  183. 


'^    77]  RIGHT  OF   WAY.  73 

damages  in  money  that  would  be  inflicted  upon  the  railroad.  The 
land  along  the  railroad  company's  right  of  way  may  be  of  a  peculiar 
or  particular  value  for  specific  purposes,  and  this  fact  must  be  taken 
into  consideration  in  the  awarding  of  damages  to  the  road,  since  the 
telegraph  company  cannot  avail  itself  of  improved  conditions  with- 
out due  and  proper  compensation.  There  is  one  fact,  however,  undis- 
puted: the  telegraph  company  must  make  compensation  proportion- 
ately for  the  cost  and  expense  of  the  railroad  in  putting  in  condition 
its  right  of  way.^^  The  circumstances  in  every  case  are  not  the  same, 
so  each  must  be  considered  in  the  light  of  its  own  surroundings  and 
decided  on  its  own  peculiar  state  of  facts. 

§  76.    Canal — under  same  statutes. 

In  some  states  these  statutes  gTant  to  telegi-aph  and  telephone  com- 
panies the  right  to  construct  their  lines  upon,  or  along,  by  and  across 
canals.  Thus,  under  a  Louisiana  statute,^^  the  land  of  the  state, 
though  appropriated  to  the  use  of  a  canal  may  be  used  by  a  telephone 
company  along  and  over  the  waters  of  the  state,  provided  that  the 
ordinary  use  of  the  company  does  not  interfere  with  it  in  any  man- 
ner, or  obstruct  in  the  least  the  use  of  it  by  the  state  or  the  plaintiff 
company.^'' 

§  77.    The  term  "highway"  embraces  city  streets. 

These  statutes  which  confer  upon  telegraph  and  telephone  com- 
panies the  right  to  occupy  "public  highways"  of  the  state,  em- 
brace city  streets,  unless  a  diiferent  intent  is  clearly  indicated,^^  yet 
it  has  been  held  that  where  the  term  '^public  roads"  is  used  in  the  stat- 

" Postal    Cable    Tel.  Co.  v.  Morgan's  necessary)  ;  East  Tenn.  Tel  Co.  v.  ilus- 

Louisiana,  etc.,  R.,    etc.,    Co.,    21    So.  sellville,  106  Ky.  667;    Duluth   v.    Du- 

183,   49   La.  Ann.   58,   affirming  Postal  luth  Tel.  Co.,  84  Minn.  486,  87  N.  W. 

Tel.  Co.  V.  Louisiana,  etc.,  R.  Co.,  9  So.  ]i24;    Northwestern  Tel.  Exch.  Co.  v. 

119.     In  the  latter  case  an   award  of  ^ii„neapolis,  81   Minn.    140    83  X.  W. 

$50  per  mile  was  allowed.  .^^^  53  ^   ^  ^   j^^.  j^ij^^igan  Tel.  Co. 


V.   Boston  Harbor,   121   Minn.   512,  83 
X.  W.  386,  47  L.  R.  A.   104;   State  v. 


*'No.  24,   1880 

■'"State  V.  Cumbovland,  etc.,  Tel.  Co., 
52  La.  Ann.   1411,  27  So.  795. 

-Abbott  V.    Duluth,    104    Fed.    833;        Sheyboygan,   11    Wis.    23;    86    N.    W. 

Chamberland  v.  Iowa  Tel.  Co.,   119  Iowa       '"""• 
610,  93  N.  W.  596;    (City's  consent  un- 


74  TELEGRAPH  AND   TELEPHONE    COMPANIES.  [^^    ''^7 

utes,  streets  of  a  city  are  uot  embraced  therein.^-  The  term  will  also 
embrace  a  turnpike,^^  but  not  a  railroad  or  its  right  of  way,^^  nor  will 
it  embrace  lands  granted  for  canal  purposes. ^^ 

§  78.    Conditions  of  grantee. 

In  the  granting  by  the  state  to  telegraph  and  telephone  companies 
the  right  to  construct  and  operate  lines  of  wires  across  private  prop- 
erty, along  and  upon  highways,  railroads,  and  along,  across  and  un- 
der navigable  waters,  there  are  certain  conditions  for  the  welfare  and 
convenience  of  the  public  always  required  of  the  grantees,  for  the  en- 
joyment of  such  right.  For  instance,  in  some  states,  authority  is 
given  by  statutes  to  all  telegraph  companies  to  erect  poles  on  which  to 
place  their  wires,  on  all  highw-ays  or  public  roads,  by  first  obtaining 
the  consent,  in  wTiting  of  the  county  board  of  the  county  in  which 
such  highway  is  situated  ;^*^  and  that  the  posts,  arms,  insulators  and 
other  fi_xtures  of  such  telegraph  or  telephone  lines  be  so  erected, 
placed  and  maintained  as  not  to  obstruct  or  interfere  with  the  ordi- 
nary use  of  such  highways,  railroads,  streets  or  water;  or  with  the 
convience  of  any  land  owners  more  than  may  be  unavoidable  5^"^  or 
change  or  adjust,  when  necessary,  its  system  of  operating  its  tele- 
phone lines  as  not  to  curtail  the  enjoyment  by  the  public  of  the  best 
mode  of  travel  and  transportation ;  ^^  or  not  to  interfere  wath  the 
opening  and  closing  of  a  drawbridge  across  a  navigable  stream  ^^ 
nor  obstruct  steamers  or  travels  upon  the  navigable  waters.  And 
these  companies  must  always  first  make  compensation  for  damages 
and  injuries  inflicted  upon  the  owners  of  the  fee  or  right  of  w^ay,^*^  or 
they  would  be  taking  the  property  of  others  without  compensation. 

'--  Nebraska  Tel.  Co.  v.  West.     Inde-  =«  Board  of  Trade  Tel.  Co.  v.  Barnett, 

pendent  Long  Distance  Tel.  Co.,  95  N.  107  111.  507. 

W.  lg_  "Miss.  L.  1886,  p.  93. 

°^  People's    Tel.,    etc.,    Co.    v.    Burks,  °*  Cincinnati  Incline  Plane  R.  Co.  v. 

etc.,  Turnpike  Road,   199  Pa.   St.  411,  Tel.   Association,   48   Ohio   St.   390,  29 

49  Atl.  284.  Am.  St.  Rep.  559,  12  L.  R.  A.  534,  27  N". 

'"*  West.  U.  Tel.  Co.  v.  Penn.  R.  Co.,  e.  890. 

(C.  C.   A.)    123  Fed.  33,  reversing  120  so  p^c.  Mut.  Tel.  Co.  v.  Chicago,  etc.. 

Fed.  981.  Bridge  Co.,  36  Kan.  113,  12  Pac.  535. 

"State  V.  Cumberland  Tel.,  etc.,  Co.,  «» Board  of  Trade  Td.  Co.  v.  Barnett, 

.52  La.  Ann.  141,  27  So.  795.  107  111.  507. 


CHAPTER  VI. 

MUNICIPAL  GRANTS. 

§  79.  Easement — where  vested. 

80.  Same  continued — authority — how  acquired. 

81.  Same  continued — terms  and  conditions. 

82.  Same  continued — unconditional  statutes. 

83.  Same  continued — city's  consent. 

84.  Must  petition  municipalities. 

85.  Compensation  to  municipalities. 

86.  Same  continued— city  control. 

87.  Same    continued — charge    in    nature    a    rental — decision     of 

point. 

88.  Same  continued — not  on  gross  income — effect  of. 

89.  Same  continued — reasonable  charges. 

90.  Termination  of  franchise  to  occupy  streets. 

§  79.     Easement — where  vested. 

The  easement  in  the  highways  is  vested  in  the  public  from  which  it 
cannot  be  divested  by  anything  short  of  an  action  instituted  by  the 
sovereign  power.  The  public  may  surrender  the  rights  and  privi- 
leges which  it  has  therein,  but  the  same  must  be  done  by  proper  pro- 
ceedings conducted  by  the  sovereign  authority;  as,  without  which,  it 
cannot  be  divested.  A  non-user  or  an  adverse  use  will  not  be  consid- 
ered a  surrender  of  its  vested  rights.^  For  the  same  reason,  the  pub- 

>Webb  V.  Dunapolis,  95  Ala.  IIG,  13  409,  33  Am.  St.  Rep.  682;   Newsom  v. 

So.  289,  21  L.  R.  A.  62;  Yolo  v.  Barmy.  Charles  Street  Ave.  Co.,  83  Md.  130,  34 

79   Cal.   375,  21   Pac.   833,   12  Am.   St.  Atl.  360;  Almy  v.  Church,  18  R.  I.  182, 

Rei).    152 ;    Ralston   v.    Weston,   46   \Y.  26  Atl.  58 ;  Yates  v.  Warrenton,  84  Va. 

Va.  544,  33  S.  E.  326;  Lee  v.  Mound  337,  4  S.  E.  818,  10  Am.  St.  Rep.  860; 

Station,  118  111.  304,  8  N.  W.  759;  Sch-  Crocker  v.  Collins,  37  S.  C.  327,  15  S. 

midt  V.  Draper,  137  Ind.  249,  36  N.  W.  E.  951.  34  Am.  St.  Rep.  752;  Moose  v. 

79:   Huddleston  v.  Hendricks,  52  Ohio  Carson,  104  X.  C.  431,  7  L.  R.  A.  548n, 

St.  460,  40  X.  E.  408;  Childsv.  Nelson.  10    S.    E.    689.    17    Am.    St.   Rep.    681; 

C.n  Wis.  125,  33  N.  W.  587;     Coin.     v.  Viclcsburg  v.  :Marshall,  59    Miss.    563; 

:\Ioorehead,  118  Pa.  St.  344,  12  Atl.  424,  Louisiana  Ice  Mfg.  Co.  v.  New  Orleans. 

4  Am.  St.  Rep.  599;  Briggs  v.  Philips,  43   La.   Ann.   217,    9   So.   21;    Raht   v. 

103  N.  Y.  77;  St.  Vincent  Orphan  Asy-  Southern  R.  Co.,  50  S.  W.  72;  Waterloo 

lum  V.  Troy,  76  N.  Y.  108,  32  Am.  St.  v.  Union  :Mill  Co.,  72  Iowa  437.  34  N. 

Rep.  286;  Lainy  v.  United  New  Jersey  w.  137;  Williams  v.  St.  Loui?;.  120  Mo. 

R..  etc.,  Co.,  54  X.  -T.   L.   576,  25  Atl.  403,  25  S.  W.  561. 

(75) 


76  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  [§    79 

lie  interest  in  the  easement  of  a  highway  cannot  be  changed  to  a  dif- 
ferent and  additional  use  without  like  proceedings.  The  acts  and 
doings  of  the  public  are  exercised  over  by  the  legislature ;  -  therefore, 
the  legislature,  representing  the  public,  may  release  the  public  rights, 
by  vacating  the  highways ;  may  modify  the  public  use,  by  granting  a 
right  to  use  them  for  a  horse  railroad ;  or  may  restrict  the  public  use, 
by  gTanting  a  right  to  erect  poles  and  other  obstructions  therein.^ 
What  the  legislature  may  thus  do  it  may  also  delegate  to  others. 
Thus,  from  the  earliest  history  of  the  laws  of  the  state,  authority  to 
vacate  highways  in  county  districts  has  been  conferred  on  special 
tribunals.  The  like  authority  has  frequently  been  conferred  on  mu- 
nicipalities. 'No  reason  appears  why  such  authority,  possessed  by  the 
legislature  may  not  thus  be  delegated.  But  the  delegation  of  such 
power  must  plainly  appear,  either  by  express  grant  or  by  necessary 
implication. 

§  80.     Same  continued — authority — how  acquired. 

It  is  a  fundamental  principle  of  law,  that  the  powers  of  a  munici- 
pal corporation  in  respect  to  the  control  of  its  streets  are  held  in  trust 
for  the  public  benefit,  and  cannot,  unless  clearly  authorized  by  a 
valid  legislative  enactment,  be  surrendered  or  delegated  by  contract 
to  private  persons  or  other  corporations.^  Whether  or  not  the  right 
to  authorize  the  use  of  its  streets  exists  in  the  municipality  in  particu- 
lar cases,  is  a  question  of  the  construction  of  charters  and  of  legisla- 
tive provisions  in  force  in  the  state ;  ^  but  the  powers  usually  confer- 
red upon  municipal  corporations  are  generally  sufficient  to  authorize 
the  implication  that  such  rights  exist.  Thus,  authority  to  "license, 
tax,  and  regulate"  telephone  companies  and  "all  their  branches  of 
business,"  given  to  a  city  by  its  charter,  carries  with  it  power  to  grant 

^  Polack  V.  Trustees  of  San  Francisco  125   New   York   641,   21    Am.    St.   Rep. 

Orphan  Asylum,  48  Cal.  490;  Meyer  v.  7G4,  13  L.  R.  A.  454n. 

Village  of  Teutopolis,   131   111.   552,   22  *  CMcago,  etc.,  R.  Co.  v.  Quincy,  136 

N".  E.  689;  McGee's  Appeal,  114  Pa.  St.  111.  563,  29  Am.  St.  Rep.  334,  27  N.  E. 

470,   8   Atl.   237;    Gray  v.   Iowa  Land  172. 

Co.,  26  Iowa  387 ;   Paul  v.  Coover,  24  =  St.  Louis  v.  Bell  Tel.  Co.,  96  Mo. 

Pa.  St.  207,  64  Am.  Dec.  649.  G23,  2  L.  R.  A.  278n,  9  Am.  St.  Rep. 

*  American   Rapid  Tel.   Co.   v.   Hess,  370;   Dillon  on  Municipal     Corp.,      (3 

Ed.),  sec.  89. 


<§    ■'^l]  MUNICIPAL    GRANTS.  77 

to  such  companies  the  right  to  erect  poles  and  wires  within  the  city.'"' 
It  follows,  then,  on  account  of  these  principles  of  law,  that  the  extent 
of  power  whicli  a  municipality  has  in  granting  or  refusing  the  right 
to  a  telegraph  or  telephone  company  to  construct  a  line  of  wires  upon 
the  streets,  depends  upon  the  nature  of  the  charter  and  the  laws  Avhich 
are  in  force.  But  even  where  a  municipality  has  such  authority,  it 
must  be  confined  to  a  reasonable  exercise  thereof,  and  such  authority 
does  not  extend  to  the  power  to  grant  to  a  private  citizen  the  right  to 
construct  a  line  of  wires  for  his  owai  benefit ;  nor  can  it  grant,  under 
this  authority,  the  right  to  a  telegraph  company  to  so  obstruct  the 
streets  as  to  prevent  travel  "  or  to  interfere  with  the  ancient  light. 

§  81.     Same  continued — terms  and  conditions. 

As  a  general  rule,  telegraph  and  telephone  companies  are  given  by 
statute  the  right  to  occupy  highways  and  streets,  but  it  is  made  the 
duty  and  right  of  each  municipality  to  fix  the  terms  and  conditions 
upon  which  its  own  streets  may  be  used.  In  the  first  place,  in  order 
for  such  companies  to  take  advantage  of  and  be  protected  by  these 
statutes,  they  must  be  complied  with  in  the  manner  pointed  out  by 
such  statutes,  otherwise  their  acts  will  be  prohibited  by  in- 
junction:'' these  statutes  cannot  be  enlarged  by  municipal  ordi- 
nances,^ Thus,  where  a  statute  grants  the  right  to  these  companies 
to  construct  a  line  of  wires  over  and  through  streets,  it  has  been  held 
that  this  did  not  give  the  city  the  authority  to  place  the  -wires  under- 
ground.^'^ An  exercise  of  the  right  granted  by  such  statutes,  dele- 
gated to  the  municipal  authority,  does  not  deprive  the  latter  of  the 
police  power  over  its  streets;  ^^  and,  in  order  to  carry  out  and  main- 

••■  Hcr^c'litield   v.    Rock    Mt.    Bell    Tel.  Md.  M.  28  Am.  St.   Rep.  210.  21   Atl. 

Co..  12  Mont.  102:  2  Dillon  Mun.  Corp..  090. 

724.  ^"Coni.  V.  Warwick.  185  Pa.  St.  G23. 

•  Sheniekls    Central    U.    Tel.    Co..    30  40  Atl.  lOlU. 

¥q(\.    164.  'MVest   U.    Tel.    v.    I'hihulelphia.   21 

'Broom   v.   New   .Jersey  Tel.   Co..   42  Am.  Ensj.  Corp.  Cas.  40;  American,  etc.. 

X.  J.  i:q.   141.  7  Atl.  851;   New  York.  Tel.  Co.  v.  Hess,  125  N.  Y.  641.  21  Am. 

etc..  Tel.  Co.  v.  Township  of  East  Or-  St.  Rep.  704,  13  L.  R.  A.  454n;  Indian- 

ance,  42  N.  J.  Eq.,  490,  5  Atl.  641.  apolis    v.    Consumers'    Gas    Trust    Co.. 

"Chesi^eake  Tel.  Co.  v.  ilaekenzie.  74  140  Tnd.   107,  49  Am.  St.  Rep   183.  27 

L.  R.  A.  514.  .10  N.  E.  433. 


78  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    §1 

tain  the  municipal  government,  a  license  tax  ^-  or  rental  ^^  maty  be 
imposed  on  such  companies  doing  business  wholly  or  partly  within  the 
city  limits;  this  right  is  not  affected  by  the  act  of  Congress  from 
which  federal  grants  are  given. ^^  The  municipality  may  require 
these  companies  to  compensate  it  in  other  and  different  ways,  for  the 
privilege  of  constructing  their  lines  over  and  upon  the  streets,  where 
the  same  is  used  to  make  the  repairs  rendered  necessary  by  such  addi- 
tional use  to  which  the  streets  are  used.^^  It  has  been  held  that  a  leg- 
islative act  or  municipal  ordinance,  authorizing  the  construction  of 
the  line  of  wires  upon  the  streets,is  void  if  it  fails  to  provide  for  com- 
pensation to  abutting  owners,  ^^  But  where  the  municipalities  are 
given  the  right  and  duty  to  fix  the  terms  and  conditions  upon  which 
their  own  streets  may  be  used,  they  cannot  defeat  the  grant  of  the 
company's  right  given  by  the  statute,  by  either  refusing  to  name  the 
conditions,  or  by  imposing  unreasonable  restrictions  or  conditions. 
Whenever  there  is  a  disagreement  between  the  municipality  and 
these  companies  about  some  term  or  condition  imposed  by  the  former, 
there  should  be  and  generally  is  a  court  in  which  this  disagreement 
may  be  settled.  It  is  not  only  of  interest  to  the  municipality  and  to 
these  companies  that  all  the  conditions  should  be  agreed  upon  as 
speedily  as  possible,  but  it  is  also  of  great  interest  to  the  public.  ^"^ 

§  82.    Same  continued — unconditional  statutes. 

It  has  been  seen  that  the  legislature  may  grant  to  telegraph  and 
telephone  companies  the  right  to  occupy  city  streets  upon  such  com- 
panies complying  with  conditions  and  restrictions  of  the  city,  but  the 
legislative  grant  may  be  unconditional ;  and  when  such  is  the  case  the 
city  cannot  impose  any  conditions  or   restrictions    upon    such    com- 

"West.  U.  Tel.  Co.  v.  Freemont,  44  559,  9   So.   350,  24  Am.   St.  Rep.  290, 

Am.  En£».  Corp.  Cas.  470.  12  L.  R.  A.  864n;  Chespeake,  etc.,  Tel. 

"St.  Louis  V.  West.  U.  Tel.  Co.,  148  Co.  v.  Mackenzie,  74  Md.  36,   18  Atl. 

U.  S.  92,  13  S.  Ct.  Rep.  485.  1107,  28  Am.   St.  Rep.  227;   Southern 

"  St.  Louis  V.  West.  U.  Tel.  Co.,  148  R.   Co.   v.   Southern,  etc.,  Tel.   Co.,   46 

U.  S.  92,  13  S.  Ct.  Rep.  485.  Ga.  43,  12  Am.  Rep.  585. 

**Zanesville   v.   Zanesville   Tel.,   etc.,  "  Zanesville  v.   Zanesville  Tel.,  etc., 

Co.,  64  Ohio  St.  67,  59  N.  E.  781,  83  Co.,  64  Ohio  St.  67,  59  N.  E.  781,  83 

Am.  St.  Rep.  725,  52  L.  R.  A.   150.  Am.  St.  Rep.  725,  52  L.  R.  A.  150. 

"  Dawson  v.  Postal  Tel.  Co.,  68  Miss. 


<§    84]  MUNICIPAL  GRANTS.  79 

panies,  except  under  the  police  power;  nor,  can  its  officers  interfere 
with  the  exercise  of  the  companies'  privileges. ^^  But  should  the  city- 
be  without  authority  to  impose  reasonable  conditions  upon  these  com- 
panies— having  merely  the  power  to  consent  or  refuse  consent — they 
may,  nevertheless,  annex  certain  conditions  on  them  for  the  right  of 
easement  over  the  streets ;  and,  if  the  companies  acquire  an 
easement  in  the  streets  in  accordance  to  said  conditions,  and  occupy 
them,  they  cannot  afterwards  repudiate  the  conditions.  ^^  This  prin- 
ciple of  law  is  founded  on  the  ground  of  estoppel  and  will  be  closely 
observed  as  in  all  other  cases  of  this  nature.  The  city  authority  can- 
not revoke  a  designation  of  the  streets  in  which  a  telegraph  company 
may  place  their  poles,  when  the  company  has  conformed  to  the  con- 
ditions upon  which  the  designation  was  made,  and  has  expended 
money  in  placing  poles  upon  the  designated  streets.^^ 

§  83.     Same  continued — city's  consent. 

Many  of  these  statutes  which  gives  telegTaph  and  telephone  com- 
panies the  right  to  construct  lines  of  wires  upon  the  streets  of  cities 
provided  that  this  right  shall  not  be  exercised  without  first  obtaining 
either  the  consent  of  the  council  or  the  board  of  commissioners.  The 
municipality  does  not  lose  control  over  its  streets,  and  any  addi- 
tional servitude  to  which  it  may  be  placed  should  be  known  by,  and 
consented  to,  by  one  having  supervision  over  the  maintenance  of 
streets.  The  provisions  in  these  statutes,  to  the  effect  that  the  con- 
sent of  the  municipality  shall  be  first  obtained,  are  mandatory  and  a 
company  can  acquire  no  right  to  occupy  the  streets  until  such  have 
been  obtained.-^ 

§  84.    Must  petition  municipalities. 

Another  requirement  of  a  telegraph  or  telephone  company  neces- 
sary to  be  made  before  legally  and  properly  acquiring  an  easement 

"  State  V.  Flad,  23  Mo.  App.  185.  =»  Southern  Bell,  etc..  Co.     v.     Rich- 

"  Southern   Bell  Tel.,  etc.,  Co.  v.  Rich-  niond,   103  Fed.  31,  44  C  C.  A.   147; 

niond,  103  Fed.  31,  44  C.  C.  A.  147.  East  Tenn.   Tel.   Co.   v.  Anderson  Tel. 

'"Hudson  Tel.  Co.  v.  Meyer,  etc.,  Jer-  Co.,  74  S.  W.  218,  24  Ky.  L.  Rep.  2358, 

sey  City,  49  N.  J.  L.  303,  60  Am.  Dec.  74  S.  W.  218;   State  v.     Spokane,     24 

619,  8  Atl.  123. 


80  TELEGRAPH  AXD  TELEPHONE  COMPANIES.  ["^    84 

on  city  streets  for  its  lines,  is  that  it  should  petition  the  municipal 
authority  who  has  the  power  to  make  such  grants,  asking  for  this 
privilege ;  setting  out  in  the  petition,  in  clear  and  definite  language, 
the  street  or  streets  on  which  it  intends  to  construct  said  line ;  the  side 
of  the  street  on  which  the  construction  is  to  he  made ;  the  size  of  the 
posts;  and  such  other  requirements  as  may  be  provided  for  in  the 
statutes.  This  should  be  done  in  order  to  apprise  the  commissioners, 
or  the  parties  who  have  the  authority  to  grant  such  rights,  of  the  bur- 
dens which  they  may  expect,  and  the  landowner  of  the  burden  to 
which  he  must  submit."" 

§  85.    Compensation  to  municipality. 

After  a  statute  has  granted  to  telegraph  and  telephone  compan- 
ies the  right  to  construct  their  lines  upon  the  streets  of  a  municipal- 
ity the  question  which  next  presents  itself  is.  Has  the  municipality 
the  right  to  exact  compensation  of  these  companies  for  exercising  this 
privilege  ?  In  answering  this  question,  it  is  necessary  to  know  as  to 
w^hether  or  not  the  city  has  entire  control  over  the  streets ;  if  it  should 
be  learned  that  this  be  the  case  and  the  fee  to  the  streets  is  in  the  lat- 
ter, it  may  be  answered  in  the  affirmative :  otherwise  not ;  yet,  there 
seems  to  be  some  difference  of  opinion  on  the  subject.  There  is  no 
question,  in  our  mind — and  yet,  as  will  be  later  seen,  the  courts  are 
wholly  at  sea — but  that  these  companies  are  an  additional  burden  to 
the  streets,  for  which  the  abutting  owners  should  be  compensated.  It 
has  been  held  by  an  eminent  text-writer  that  a  municipal  corporation, 
though  holding  the  fee  in  the  streets,  has  no  private  property  right  or 
interest  in  them  which  entitles  it  to  compensation,  under  the  consti- 
tution when  they  are  subject  to  an  authorized  additional  burden  of  a 
public  nature."^  But  if  the  city  charter  or  the  law^s  of  the  state  vest 
in  the  municipality  the  entire  control  over  its  streets  such  city  may 
exact  of  these  companies  a  reasonable  compensation  for  the  use  of 
its  streets  in  the  nature  of  rental."^     The  municipality  must  clearly 

Wash.  53:  Xorshfield  v.  Wisconsin  Tel.  "Lewis  on     Eminent     Domain,     sec. 

Co.,   102   Wis.   604,  44  L.  R.  A.   565n:  119. 

St.  Paul  V.  Freedy,  86  Minn.  350,  90  N.  -*  St.  Louis  v.  West.  U.  Tel.  Co.,  149 

W.  781.  U.  S.  465,   13  S.  Ct.  Rep.  990. 

^  Brooms  v.   New  York,   etc.,   Co.,   8 
Cent.  Rep.  5S9,  21  Am.  St.  Rep.  704. 


§    86]  MUNICIPAL    GRAXTS. 


81 


show  that  it  has  this  i^nver  iiotwithstaiKliiig  the  fact  that  the  fee  is 
ill  the  city ;  since  if  the  statute  provides  that  on  compliance  with  the 
terms  by  such  companies,  they  may  without  compensation  use  so 
much  of  the  streets  as  may  be  reasonably  needed  for  the  construc- 
tion of  their  lines,  an  ordinance  cannot  be  passed  charging  them  rent 
for  the  use  of  the  streets,-^  and  yet  it  may  exact  so  much  from  these 
companies  as  may  be  necessary  to  make  the  repairs  rendered  necessary 
by  such  additional  use.^^ 

§  86.     Same  continued — city  control. 

As  has  been  said,  where  the  city  has  the  entire  control  over  its 
streets,  which  is  seldom  the  case,  it  may  exact  compensation  of  these 
companies  in  the  nature  of  a  rental.  The  leading  cases  arising  on  the 
question  came  up  from  the  city  of  St.  ,.ouis  in  which  it  demanded 
rental  for  the  use  of  its  streets,  and  there  the  court  held  that  such 
power  was  vested  in  the  municipality.-'  This  city  is  the  absolute 
owner  of  the  fee  in  its  streets,  and  the  charter  powers  of  the  city  are 
"self-appointed."  The  city  of  St.  Louis  occupies  a  unique  position. 
It  does  not,  like  most  cities,  derive  its  powers  by  grant  from  the  leg- 
islature ;  but  it  formed  its  own  charter  under  express  authority  from 
the  people  of  the  state,  given  in  the  constitution.  Its  charter  is  an  or- 
ganic act — so  defined  in  the  constitution — and  is  to  be  construed  as 
organic  acts  are  construed.  The  city  is,  in  a  very  just  sense,  an  im- 
yerium  in  imperio.  Its  powers  are  self-appointive,  and  the  reserved 
control,  vesting  in  the  general  assembly,  does  not  take  away  this  pe- 
culiar feature  of  its  charter.  The  courts  considering  the  city  as  ab- 
solute and  uncontrolled  proprietor  of  its  streets,  held  that  rent  might 
be  exacted  from  telcgTaph  companies  in  the  nature  of  toll — a  demand 
of  proprietorship.  The  peculiar  nature  of  the  charter  of  St.  Louis 
and  the  manner  in  which  it  was  acquired,  make  these  cases  of  much 

"Hod.:,'es  v.  West.  U.  Tel  Co.,  18  So.  "St.  Louis  v.  West.  U.  Tel.  Co.,  149 

84,  72  Miss.  910,  29  L.  R.  A.  770.  U.   S.   46-1.   13  S.  Ct.  Rep.  990;   Postal 

='  Zanesville  v.  Z.inesville,  Tel.,  etc..  Tel.  Cablv-  Co.  v.     Baltimore,     79    Md. 

Co.,  04  Ohio.  St.  67,  59  N.  E.  781,  83  502,  29  Atl.  819,  affirmed  by  156  U.  ti- 

Am.  St.  Rep.  725,  52  L.  R.  A.  150.    See  210,  15  S.  Ct.  Rep.  356;  Harrisburg  v. 

also  Chicago,  etc.,  R.  Co.    v.    Chicago.  Penn.  Tel.   Co.,   15  Pa.   St.  Ct.   578,  3 

176  111.  253,  72  N.  E.  880,  68  Am.  St.  Pa.  Dist.  815. 
Rep.  188,  06  L.  R.  A.  959. 
T.  &  T.— 6 


82  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [*§    86 

interest  and  often  quoted,  and  jet  we  are  seldom  confronted  with  a 
similar  state  of  affairs  for  the  reason  that  few  similar  city  charters 
are  to  be  found. 

§  87.     Same  continued — charge  in  nature    a    rental — decision    of 
point. 

The  compensation  exacted  of  these  companies  by  cities  for  the  use 
of  their  streets,  is  in  the  nature  of  a  rental  and  not  a  tax;  ^^  nor  as 
a  consideration  for  the  privilege  of  using  the  streets.^ ^  It  gives  us 
much  pleasure  to  quote  at  some  length  Judge  Brewer's  opinion  on 
this  subject  when  he  very  ably  said,  that;  "Clearly,  this  is  no  privi- 
lege or  license  tax.  The  amount  to  be  paid  is  not  graduated  by  the 
amount  of  business,  nor  is  it  a  sum  fixed  for  the  privilege  of  doing 
business.  It  is  more  in  the  nature  of  a  charge  for  the  use  of  property 
belonging  to  the  city — that  which  may  properly  be  called  rental.  'A 
tax  is  a  demand  of  sovereignty;  a  toll  is  a  demand  of  proprietor- 
ship.' ^^  If,  instead  of  occupying  the  streets  and  public  places  with 
the  telegraph  poles,  the  company  should  do  what  it  may  rightfully  do, 
purchase  grounds  in  the  various  blocks  from  private  individuals,  and 
to  such  grounds  remove  its  poles,  the  section  would  no  longer  have 
any  application  to  it.  That  by  it  the  city  receives  something  which  it 
may  use  as  revenue  does  not  determine  the  character  of  the  charge  or 
make  it  a  tax.  The  revenues  of  a  municipality  may  come  from  ren- 
tals as  legitimately  and  as  properly  as  from  taxes.  Supposing  the 
city  of  St.  Louis  should  find  its  city  hall  too  small  for  its  purposes,  or 
too  far  removed  from  the  center  of  business,  and  should  purchase  or 
build  another  more  satisfactory  in  this  respect,  it  would  not  thereaf- 
ter be  forced  to  let  the  old  remain  vacant  or  to  immediately  sell  it, 
but  might  derive  revenue  by  renting  its  various  rooms.  Would  an 
ordinance  fixing  the  price  at  which  those  rooms  could  be  occupied  be 
in  any  sense  one  imposing  a  tax  ?"^^ 

=«St.  Louis  V.  West.  U.  Tel.  Co.,  148      Tel.,  etc.,   Co.,  40  La.  Ami.   41,   8  Am. 
U.  S.  92,  13  S.  Ct.  Rep.  485;  Meridian       St.  Rep.  502,  3   So.  533. 
V.  West.  U.  Tel.  Co.,  72  Miss.  910,  18  '"  State  Freight  Tax  Case,  15     Wall. 

So.  84,  29  L.  R.  A.  770.  232,  278. 

» New    Orleans    v.    Great     Southern  ^'  St.  Louis  v.  West.  U.  Tel.  Co.,  149 

U.  S.  465,  13  S.  Ct.  Rep.  990. 


<§,    89]  MUNICIPAL  GRANTS.  83 

§  88.     Same  continued — not  on  gross  income — effect  of. 

''Nor  is  the  character  of  the  charge  changed,"  as  he  further  ob- 
serves, "by  reason  of  the  fact  that  it  is  not  imposed  upon  such  tele- 
graph companies  as  by  ordinance  are  taxed  on  their  gross  income  for 
city  purposes.  In  the  ilhistration  just  made  in  respect  to  a  city  hall, 
suppose  that  the  city,  in  its  ordinance  fixing  a  price  for  the  use  of 
rooms,  should  permit  persons  Avho  pay  a  certain  amount  of  taxes  to 
occupy  a  portion  of  the  building  free  of  rent ;  that  ^vould  not  make  the 
charge  upon  others  for  their  use  of  rooms  a  tax.  Whatever  the  rea- 
sons may  have  been  for  exempting  certain  classes  of  companies  from 
this  charge,  such  exemption  does  not  change  the  character  of  the 
charge,  or  make  that  a  tax  which  would  otherwise  be  a  matter  of  ren- 
tal. Whether  the  city  has  power  to  collect  rental  for  the  use  of  streets 
and  public  places,  or  whether,  if  it  has,  the  charge  as  here  made  is  ex- 
cessive, are  questions  entirely  distinct.  That  this  is  not  a  tax  upon 
the  property  of  the  coi-poration,  or  upon  its  business,  or  for  the  privi- 
lege of  doing  business,  is  thus  disclosed  by  the  very  terms  of  the  sec- 
tion. The  city  has  attempted  to  make  the  telegraph  company  pay  for 
appropriating  to  its  own  and  sole  use  a  part  of  the  streets  and  public 
places  of  the  city.  It  is  seeking  to  collect  rent.  While  we  think  that 
the  circuit  court  erred  in  its  conclusions  as  to  the  character  of  this 
charge,  it  does  not  follow  therefrom  that  the  judgment  should  be  re- 
versed, and  a  judgment  entered  in  favor  of  the  city.  Other  ques- 
tions are  presented  which  compel  the  examination."  '"- 

§  89.     Same  continued — reasonable  charges. 

As  to  the  reasonableness  of  an  ordinance  which  charges  five  dol- 
lars a  pole  per  annum  the  same  court  said,  that ;  ''Prima  facie,  an  or- 
dinance like  that  is  reasonable.  The  court  cannot  assume  that  such 
a  charge  is  excessive,  and  so  excessive  as  to  make  the  ordinance  unrea- 
sonable and  void ;  for,  as  applied  in  certain  cases,  a  like  charge  for  so 
much  appropriation  of  the  streets  may  be  reasonable.  If,  within  a 
few  blocks  of  Wall  street,  :N'ew  York,  the  telegraph  company  should 
place  on  the  public  streets  1,500  of  the  large  telegraph  poles,  it  would 

'^St.  Louis  V.  West.  U.  Tel.  Co..  149 
V.  S.  4(5.5,  13  S.  Ct.  Eep.  !)90. 


84  TELEGRAPH    AND    TELEPHOXE    COMPANIES.  [<^89 

seem  as  though  no  court  could  declare  that  five  dollars  a  pole  was  an 
excessive  annual  rental  for  the  ground  so  exclusively  appropriated; 
while,  on  the  other  hand,  a  charge  for  a  like  number  of  poles  in  a 
small  village,  where  space  is  abundant  and  land  of  little  value,  would 
be  manifestly  unreasonable,  and  might  be  so  excessive  as  to  be  void. 
Indeed,  it  may  be  observed,  in  line  with  thoughts  heretofore  ex- 
pressed, that  this  charge  is  one  in  the  nature  of  rental ;  that  the  occu- 
pation by  this  interstate  commerce  company  of  the  streets  cannot  be 
denied  by  the  city ;  that  all  that  it  can  insist  upon  is,  in  this  respect, 
reasonable  compensation  for  the  space  in  the  streets  thus  exclusively 
appropriated;  and  it  follows  in  the  nature  of  things  that  it  does  not 
lie  exclusively  in  its  power  to  determine  what  is  reasonable  rental. 
The  inquiry  must  be  open  to  the  courts  and  it  is  an  inquiry  which 
must  depend  largely  upon  matters  not  apparent  upon  the  face  of  the 
ordinance,  but  existing  only  in  the  actual  state  of  affairs  in  the  city.^" 

§  90.    Termination  of  franchise  to  occupy  streets. 

A  municipal  ordinance  which  grants  to  a  company  authority  to 
construct  and  maintain  telephone  lines  on  the  streets  of  a  city,  with- 
out any  limitation  as  to  time,  and  for  a  consideration  therein  named, 
is,  when  accepted  and  acted  upon  by  the  grantee,  a  contract  with  the 
city  which  cannot  thereafter  be  abolished  or  altered  in  its  essential 
terms  without  the  consent  of  the  grantee.^^  The  franchise  or  right  to 
use  the  streets  is  an  irrevocable  contract  and  cannotbe  revoked  without 
just  cause  ^^  and  one  which  the  city  cannot  by  indirection  or  other- 
wise arbitrarily  declare  forfeited ;  ^^  nor,  can  it  remove  the  company's 
lines  arbitrarily  and  without  notice,^"  upon  the    expiration    of    the 

^St.  Louis  V.  West.  U.  Tel.  Co.,  148  stere  v.   Chicago,   145  III.   451,  36  Am. 

U.  S.  92,  13  S.  Ct.  Rep.  485.  St.  Rep.  496,  34  N.  E.  426. 

^New  Orleans  v.     Great     Southern  ^5  ^^est.    U.   Tel.   Co.   v.   Toledo,    103 

Tel.,  etc.,  Co.,  40  La.  Ann.   41,   3   So.  Fed.  740.    See,  also.  Seaboard  Tel.,  etc., 

533,  8  Am.  St.  Rep.  502;  Indianapolis  Co.    v.   Kearney,    OS    I*.    Y.   App.    Div. 

V.  Consumer's  Gas  Trust  Co.,  140  Ind.  283. 

107,  39  N.  E.  133,  49  Am.  St.  Rep.  183,  «« Abbott   v.    Duluth,    104    Fed.    833: 

27  L.  R.  A.  514;   Williams  v.  Citizen's  Old  Colony  Trust  Co.  v.   Wichita,   123 

R.  Co.,   130  Ind.  71,  29  N.  E.  408,  30  Fed.  762. 

Am.  St.  Rep.  201,  15  L.  R.  A.  64;  Greg-  "Mutual  U.  Tol.  Co.  v.  Chicago,  16 

Fed.  309. 


<§>    90]  MUNICIPAL  GRANTS.  85 

right  by  lapse  of  the  stipulated  period.  When  the  company's  stipu- 
lated time  has  expired  for  the  use  of  the  streets,  it  has  no  right  to  con- 
tinue the  said  use  without  the  consent  of  the  city,  and  should  it  ;it- 
tcmpt  so  to  do,  the  city  may  enjoin  it  from  further  use.^^  And  it 
has  been  held  that  where  the  right  of  the  company  to  use  the  streets 
is  unsettled,  the  company  cannot  have  a  preliminary  injunction  to  re- 
strain the  removal  of  its  poles  by  the  municipality.^® 

^*Mut.  U.  Tel.  Co.  V.  Chicago,  16  Fed.  ""New  York,  etc..  Co.  v.  East  Orange 

309.  Tp.,  42  N.  J.  Eq.  490,  8  Atl.  289. 


CHAPTER  VII. 

CONSTRUCTION  AND    MAINTENANCE    OF    TELEGRAPH    AND 
TELEPHONE  LINES. 

§  91.  In  streets. 

02.  State  control. 

93.  Right  may  be  delegated  to  city. 

94.  City  control. 

95.  Unauthorized  use — nuisances. 

96.  Additional  servitude — in  general. 

97.  Taking  of  property  for  public  use — what  is. 

98.  ^ame  continued — illustrations. 

99.  When  dedicated  for  street  purposes — not  an  imposition. 

100.  The  different  uses  to  which    streets   and   highways    may   be 

put. 

101.  Cases  holding  not  entitled  to  compensation. 

102.  Same  continued — opinions. 

103.  Same  continued — new  use  of  the  easement. 

104.  Same  continued — upholding  same. 

105.  The  ground  upon  which  these  cases  are  sustained. 

106.  Same  continued — not  things  of  motion. 

107.  Contrary  view — additional  servitude — so  held. 

108.  Same  continued — rights  included  in  an  easement. 

109.  Same  continued — fee  in  abutting  owner. 

110.  Same  continued — abutter's  interest. 

111.  Same  continued — exclusive  and  public  use. 

112.  Same  continued — opinion  on  subject. 

113.  Same  continued — mandatory  injunction  allowed. 

114.  When  the  fee  is  in  the  public. 

115.  The  distinction — in  abutting  owner. 

116.  Same  continued — in  the  public. 

117.  When  title  or  fee  is  in  third  party. 

118.  Effect  of  legislative  grant — not  a  nuisance. 

119.  Amount  of  compensation  to  abutter. 

120.  Damages  to  abutting  owners — amount. 

121.  Remedies  of  adjoining  lot-owner. 

122.  Same  continued — ignorance  of  rights. 

123.  Same  continued — action  for  damages. 

124.  Further    considered — unauthorized  use  of   street — may  be  en- 

joined. 

125.  Liabilities  for  cutting  trees  overhanging  sidewalks. 

126.  Same  continued — punitory  damages. 

127.  Willful  intent — question  for  jury. 

128.  Trees  on  the  sidewalk. 


(86) 


<§    91]  CONSTRUCTION    AND    MAINTENANCE.  87 

§  91.    In  streets. 

The  right  to  construct  telegraph  and  telephone  lines  upon  the 
streets  must  be  derived  from  an  express  grant  of  the  legislature.^  It 
cannot  exist  by  implication  only.^  The  power  to  make  such  grants 
over  highways,  such  as  are  post-roads,'*  rests  in  Congress,  but  such 
grants  over  all  other  highways  in  a  state,  including  city  streets,  rests 
ultimately  in  the  legislature.^  A  municij^ality  is  a  part  of  the 
government  and  exercises  such  powers  only  as  are  expressly  granted 
in  its  charter,  or  such  as  are  necessarily  implied  to  carry  out  those 
expressly  given. ^  Legislative  powers  may  be  and  are  delegated  to 
these  municipalities ;  ^  and  among  these,  one  is  the  power  to  grant 
to  telephone  companies,  as  has  already  been  discussed,*  the  right  to 
the  use  of  its  streets  for  telephonic  purposes.  The  rightsand  powers  of 
a  municipality  are  derived  from  the  legislature  as  those  of  any  other 
corporation ;  however,  there  is  no  contract  existing  between  the  state 
and  the  municipality  which  would  prevent  the  state  from  repealing, 
amending,  changing,  or  even  annulling  the  latter's  charter,  and 
thereby  infringing  upon  the  contractual  right.  For  the  reason  that 
a  city  is  only  a  part  of  the  government,  created  for  the 
purpose  of  assisting  in  the  carrying  on  of  the  governmental  affairs,  its 
charter  may  be  altered,  changed  or  annulled,  in  order  to  meet  the 
demands  of  the  government  and  the  purpose  for  which  it  was  created. 
The  city  may  pass  ordinances  for  the  betterment  of  its  internal  so- 
ciety and  business,  but  these  must  be  consistent  with  its  charter  and 

'  Broome  v.  New  Jersey  Tel.  Co.,  42  Jersey  City,  40  X.  J.   303,  8  Atl.   123, 

N.  J.  Eq.    141,  7  Atl.  851;   New  York  (50  Am.  Rep.  619;  Barhitc  v.  Home  Tel. 

and  New  Jersey  Tel.  Co.  v.  Township  Co.,  50  N.  Y,  App.  Div.  25. 

of  East  Orange.  42  Ind.   490,  8  N.  E.  '-  Whiting  v.  West  Point,  88  Va.  905, 

289;  Domestic  Tel.,  etc.,  Co.  v.  Newark,  ]4  s.  E.  f)08,  15  L.  R.  A.  8G0n,  29  Am. 

16  Am.  St.  Rep.  293.  St.   Rep.   750;    Wilson     v.     Beyers,     5 

«Atty.-Gen.  v.  United  Kingdom  Elec-  Wash.  303,  34  Am.  St.  Rep.  858;  South 

trie  Tel.  Co.,  30  Beav.  287;     Reg.     v.  Covington,  etc.,  R.  Co.,  v.  Berry,  93  Ky. 

United  Kingdom   Electric}  Tel.     Co.,   9  43,  15  L.  R.  A.  C04n,  40  Am.  St.  Rep. 

Cox.  C.  C.  174.  IGl:    Pliilips   v.   Denver.    19   Colo.   179, 

'See  Federal  Grants— chapter   there-  41  Ani.  St.  Rep.  230;  Chauper  v.  Green- 
on.  castle.    138   Ind.  339,  46  Am.   St.  Rep. 

« Abbott  V.  Duluth,     104     Fed.     833  390.  35  N.  E.   14,  25  L.  R.  A.,  768n. 

(constrning  Laws  of  Minn.  18G0.  ch.  12.  "City  \-.  Parker,  114  Ala.  118,  21  So. 

§  11)  ;  Irwin  v.  Great  Southern  Tel.  Co.  452,  02  Am.  St.  Rep.  95. 

37   La.   Ann.    03:    Ihulson   Tel.    Co.    v.  *  See  Ciiapter  G. 


88  TELEGEAPH  AXD   TELEPHONE   COMPANIES.  \_^    91 

the  laws  of  the  state.  This  is  one  of  the  delegated  powers  and  may 
be  exercised  in  any  manner  not  inconsistent  with  the  laws  of  the  land. 
For  instance,  the  manner  in  which  the  streets  are  kept  and  main- 
tained is  left  partly  to  city  control  with  the  consent  of  the  state ;  and, 
yet  the  streets  do  not  belong  to  the  municipality  nor  to  the  citizens 
therein/  but  they  belong  to  the  public.  They  are  public  thorough- 
fares over  and  along  \vhich  all  citizens  have  the  same  right  to  travel ; 
and  the  state  should  and  does  therefore  have  them  under  the  same 
control  and  general  supervision  as  it  has  other  public  highways. 
The  state  has  such  control  over  the  streets  and  public  highways  as  to 
prevent  them  from  being  obstructed  or  used  in  any  manner  which 
would  incommode  public  travel.  It  may  grant  the  license  to  any  pul)- 
lic  enterprise,  which  has  an  interest  to  perform  toward  the  govern- 
ment to  use  the  streets  for  the  purpose  of  carrying  on  its  business ;  but 
there  must  not  be  such  a  use  of  the  license  as  would  interfere  with 
public  travel.  For  instance  if  the  streets  are  so  thickly  planted  with 
telephone  poles  and  in  such  a  manner  as  to  endanger  public  travel, 
they  may  be  required  to  be  moved ;  or  because  of  the  noise  and  dan- 
ger of  a  multiplicity  of  wires  in  a  large  city,  they  may  be  required  to 
be  placed  under  ground.^ 

§  92.     State  control. 

Statutes  authorizing  a  corporation  to  construct  lines  of  telegraph 
along  and  upon  the  public  streets,  by  the  erection  of  the  necessary 
fixtures,  including  posts,  piers,  and  abutments  for  maintaining  wires, 
do  not  grant  any  interest  in  such  streets.^  At  most,  they  only  confer 
a  license  to  enter  thereon  for  the  purposes  named,  and  merely  deter- 
mine that  one  of  the  purposes  for  which  the  streets  may  be  used  is  the 
erection  of  poles  and  the  stringing  of  wires  for  the  business  of  tele- 
gTaphing;  and  that  such  use  is  a  public  one,  not  inconsistent  with 
the  use  of  the  street  for  general  street  purposes.^"  Such  grants  do 
not  abdicate  its  power  over  the  public  streets,  nor  in  any  way  curtail 

^See   note   to   McCorniick   v.   District  "  American,  etc.,  Tel.  Co.  v.  Hess,  125 

of    Columbia,    54   Am.    Rep.    291.  N.  Y.  64],  21  Am.  St.  Rep.  764,  13  L. 

« American,  etc.,  Tel.  Co.  v.  Iless,  125  R.  A.  454n. 

New  York   641,   21   Am.   St.   Rep.   764.  "Id. 
13  L.  R.  A.,  454n. 


^    94]  CONSTRUCTION  AND  MAINTENANCE. 


89 


its  police  power  to  be  exercised  for  the  general  welfare  of  the  public ; 
and  if  the  poles  and  wires  become  a  serious  obstruction  and  nuisance 
in  the  streets,  the  legislature  may  take  such  action  and  make  such 
provisions  by  law  as  are  needful  to  remove  the  nuisance  and  restore 
the  utility  of  the  streets  for  ])ublic  purposes. ^^ 

§  93.     Right  may  be  delegated  to  city. 

The  power  to  gi-aat  licenses  to  telephone  companies  to  construct 
and  maintain  their  lines  in  municipalities  may  be  delegated  to  the 
latter;  but  this  power  must  he  expressly  granted  by  the  state.  The 
right,  then,  virtually  comes  direct  from  the  state,  and  the  municipal 
authority  only  gives  permission  to  use  the  same;  for  the  latter  may 
attempt  to  exercise  the  right  to  grant  such  license  and  yet  the  state 
may  prevent  the  same  from  being  enjoyed. ^^  The  municipal  author- 
ity has  no  power  to  enlarge  upon  the  rights  delegated ;  ^^  otherwise 
they  would  be  exercising  the  same  power  in  this  respect  as  that  of 
the  legislature,  which  it  cannot  do,  since  the  power  to  control  streets 
and  public  highwvays  rest  ultimately  in  the  latter. 

§  94.     City  control. 

\Vhile  the  grant  to  telephone  companies  to  use  the  streets  for  tele- 
phonic purposes  is  derived  from  the  state — which  also  partly  controls 
the  manner  of  their  use — the  city  may  control  the  erection,  construc- 
tion and  maintenance  of  these  companies'  lines  as  shall  best  secure 
the  public  safety,  convenience,  and  freedom  in  the  use  of  the  streets. 
The  design  is  to  invest  telegraph  companies  with  the  right  to  use  the 
streets  of  an  incorporated  town  for  the  purpose  of  erecting  their  poles 
therein,  subject  to  such  municipal  control  as  shall  be  necessary  to  se- 
cure the  public  safety,  convenience  and  freedom  in  the  use  of  the 
streets.^''  Thus,  municipal  authorities  may  say  what  streets  shall  be 
used ;  at  what  points  in  the  streets  the  poles  shall  be  erected ;  and  how 
they  shall  be  planted  and  secured,  but  they  have  no  power  to  lay  an 
embargo.     They  may  adopt  regulations  fixing  the  elevation  at  which 

111(1  enzie,  74  Md.  36.  28  Am.  St.  Rep.  219, 

'» Mont^onicn-  v.  Pavkor.  21  So.  4»2.       21  Atl.  690. 

"  Chespeake, 'etc..   Tel.   Co.   v.   Mack-  "Barber  v.  Rapbury,   11   Allen  320; 

Angell  on  Highways,   §  223. 


90  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [<^    94 

telegraph  wires  shall  cross  the  streets;  and  thej  may  also  prescribe 
such  other  precautions  as  may  be  reasonably  necessary  to  the  safety 
of  travel.  They  have  the  right  to  regulate  but  not  to  interdict,  and 
their  regailation  to  be  valid  must  be  reasonable  and  fair.^^ 

§  95.     Unauthorized  use — nuisances. 

Legislative  sanction  directly  given  or  indirectly  conferred  through 
])roper  municipal  action  is  necessary  to  authorize  the  use  of  streets 
for  the  posts  of  a  telephone  company.  If  such  posts  be  erected  within 
the  limits  of  a  street  or  highway  without  such  sanction,  they  are  nui- 
sances ;  ^^  but  are  otherwise  when  such  rights  are  sanctioned  by  stat- 
ute. ^'^  When  the  right  is  conferred  by  the  concurrent  legislative  and 
municipal  authorities  to  a  telephone  company  to  erect  its  poles  and 
suspend  its  wires  in  and  over  the  streets  of  a  city,  this  fact  will  pro- 
tect such  company  from  being  treated  as  a  trespasser,  and  its  work 
from  being  declared  a  nuisance ;  that  is,  if  they  are  so  constructed  as 
not  to  obstruct  or  interfere  with  the  use  of  the  streets  by  the  public 
or  the  owner's  right  of  ingress  or  egress  to  and  from  his  abutting 
IDroperty.^^ 

§  96.    Additional  servitude — in  general. 

While  the  legislature  has  authority,  in  the  exercise  of  the  police 
powTr,  to  determine  as  to  whether  the  erection  of  poles  and  stringing 
of  wires  of  a  telephone  corporation  along  and  upon  streets  and  public 
highways  is  a  public  use,  not  inconsistent  with  the  uses  to  which  such 
highways  are  adopted,  yet  the  difficult  and  perplexing  question  which 
has  so  often  puzzled  the  courts  is,  whether  or  not  the  legislature  may 
authorize  the  use  of  streets  and  highways  for  such  purposes,  without 
providing  for  the  adjoining  landowner  to  be  compensated  therefor. 
In  other  w^ords,  whether  or  not,  the  erection  of  poles,    guys,    abut- 

"  American  U.  Tel.  Co.  v.  Town  of  "  Chespeake,  etc.,  Tel.  Co.  v.  Macken- 

Harrison,  31  X.  J.  Eq.  G27.  zie,   74  Md.   36,  28  Am.   St.  Rep.   219, 

"Regina  v.  United  Kingdom  Electric  21   Atl.   690. 

Tel.  Co.,  31  L.  J.  M.  C.  156,  2  Best  &  "Southern   Bell   Tel.   Co.   v.  Francis, 

S.  647,  9  Cox.  C.  C.  174;  People  v.  Mut.  109  Ala.  224,  55  Am.  St.  Rep.  930,  19 

Tel.  Co.,64,  How.  Pr.  120;   Grove  v.  Fort  So.  I.,  31  L.  R.  A.  193. 
Wayne,  45  Ind.  429,  15  Am.  Rep.  262. 


^    97]  CONSTRUCTION    AND    MAINTENANCE.  91 

ments  and  the  stringing  of  wires  of  a  telephone  company  upon  and 
along  streets  and  highways,  by  authority  of  the  state,  is  a  different 
use  than  that  of  a  public  easement  for  travel — and  that  for  which  it 
was  acquired  from  the  public,  in  whatever  manner  as  that  by  the 
exercise  of  the  power  of  eminent  domain,  by  prescription,  by  dedica- 
tion or  by  grant — thereby  creating  an  additional  servitude  to  the 
easement,  and  for  which  the  original  grantor  or  the  party  in  whom 
the  fee  is  held  or  the  adjoining  lot  or  landowner  is  entitled  to  com- 
pensation. This  question  is  by  no  means  settled  by  the  courts,  as 
some  hold — and  that  by  good  reason — that  the  construction  of  a  line 
of  these  companies  upon  the  liighways  is  not  an  additional  servitude 
of  the  easement  originally  granted  and  thereby  entitling  the  land 
owner  to  additional  compensation  ;while  equally  as  many,  if  not  more 
of  the  courts,  of  later  setting,  have  held  otherwise.  It  will  now  be  our 
pleasure  to  discuss  at  some  length  both  sides  of  this  question,  giving 
as  briefly  as  possible  the  reasons  and  opinions  presented  by  the  au- 
thorities on  either,  and  then  harmonizing  as  nearly  as  it  is  in  our 
power  these  differences, 

§  97.    Taking  of  property  for  public  use — what  is. 

In  discussing  this  question,  it  might  be  Avell,  first,  to  say  a  few 
words  as  to  what  is  understood  by  taking  property  for  public  use 
as  comprehended  by  the  constitution  when  it  declares  that  no  prop- 
erty shall  be  taken  for  public  use  without  first  compensating  the 
owner  thereof.  It  may  be  stated  as  a  general  principle — as  was  very 
ably  observed  by  an  eminent  writer  ^^ — that  when  the  lawful,  rights 
of  an  individual  to  the  possession,  use,  and  enjoyment  of  his  land  are 
in  any  degree  abridged  or  destroyed  by  reason  of  the  exercise  of  the 
power  of  eminent  domain,  his  property  is,  yro  tanto,  taken  for  public 
use.  In  early  times  it  was  held  that  property  could  be  deemed  to  be 
taken,  within  the  meaning  of  a  constitutional  provision  that  private 
property  should  not  be  taken  for  public  purposes  without  just  com- 
pensation, only  when  the  owner  was  wholly  deprived  of  its  posses- 
tion,  use  and  occupation.  But  a  more  just  and  liberal  doctrine  has 
been  long  since  firmly  established.     An  actual  physical  taking  of 

"  Lewis  on    Eminent    Domain,     §  56 
Groves  v.  Rowell,  10  N.  J.  Eq.  211. 


92  TELEGRAPH  AND  TELEPHOXE   COMPANIES,  [§    97 

the  property  is  not  necessai'}-  to  entitle  its  owner  to  compensation.  A 
man's  property  may  be  taken  within  the  meaning  of  this  constitu- 
tional provision,  although  his  title  and  possession  remains  undis- 
turbed. To  deprive  him  of  the  ordinary  beneficial  use  and  enjoy- 
ment of  his  property  is,  in  law  equivalent  to  the  taking  of  it,  and  as 
much  a  taking  as  though  the  property  itself  were  actually  taken,^*^ 
yet  in  order  for  him  to  be  able  to  enforce  this  right,  his  property  must 
be  directly  encroached  upon.-^ 

§  98.     Same  continued — illustrations. 

The  following  cases  may  be  cited  as  being  such  as  fall  under  this 
constitutional  provision  whereby  additional  servitude  is  placed  on 
the  easement  for  which  the  landowner  should  be  compensated:  The 
appropriation  of  a  country  highway  to  the  use  of  a  steam  railroad  is 
undoubtedly  the  imposition  of  a  new  servitude,  and  amounts  to  the 
taking  of  the  property  of  an  abutting  owner,  to  whom  additional 
compensation  must  be  made.--  Where  the  fee  of  the  street  of  a  city 
is  in  the  abutting  owner,  and  not  in  the  city ,2^  the  construction  of  a 
railroad,  for  the  purpose  of  transferring  freight  cars  from  the  termi- 
nals of  one  railroad  to  another  -^  and  not  regarded  merely  as  an  ex- 
tension of  the  ordinaiy  uses  to  which  the  streets  have  been  dedi- 
cated,^^ is  regarded  as  an  imposition  of  a  new  servitude,  for  which 

'^  Lewis    on   Eminent   Domain,    §.56;  "  Cooley   on   Const.   Limit.    (6   Ed.), 

Tiedeman   on   Limit   of   Police   Power,  683. 

397;   Cooley  on  Const.  Limit.    (6  Ed.),  ^  Carli  v.  Stillwater  St.  Pt.,  etc.,  Tel. 

670;   Hooker  v.   New  Home  &  N.  Co..  Co.,  28  Minn.  373. 

14  Conn.  146,  36  Am.  Dec.  477;  Rigmy  =*  Carli  v.  Stillwater  St.  R.,  etc.,  Tel. 

V.  City  of  Chicago,  102,  HI.  64;  Boston  Co.,  28  Minn.  373. 

and  Rapbury  Mill  Corporation  v.  New-  "  Carson  v.   Central  R.  Co.,  35  Cal. 

man,   12  Pick.  467,  23  Am.  Dec.  622;  325;   Market  Street  R.  Co.  v.  Central 

Grand  Rapids  B.  Co.  v.  Jarvis,  30  Mich.  R.  Co.,  57  Cal.  583;  Elliott  v.  Fair  Ha- 

308;  Ashley  v.  Port  Huron,  35  Id.  296,  ven,  etc.,  R.  Co.,  32  Conn.  579;  Savan- 

24  Am.  Rep.  552;  West  Orange  v.  Field,  nah,  etc.,  R.  Co.  v.  Mayor,  etc.,  of  Sa- 

37  N.  J.  Eq.  600,  45  Am.  Rep.  670;  Sei-  vannah,  45  Ga.  602;  Brown  v.  Duples- 

fert  V  City  of  Brooklyn,  101  N.  Y.  136,  sis,  14  La.  Ann.  842 ;  Briggs  v.  Lewis- 

54  Am.  Rep.  664.  ton,  etc.,  Co.,  79  Me.  363,  10  Atl.  47; 

"Kenneth    Petition   24,   N.    H.    139;  Peddicor-i  v.  Baltimore,  etc.,  R.  Co.,  34 

People  V.  Supervisors  of  Ouida  County,  ^id.   463;    Hess  v.    Baltimore,  etc.,   R. 

19  Wend    10'>  Co.,  52     Md.  242,  30     Am.  Rep.     371: 


<§     100]  COXSTRLX'TIOX  AXD   MAIXTEXAXCE.  93 

compensatiou  must  be  made  to  the  owner.-*'  Land  taken  for  a  street 
cannot  be  appropriated  as  a  site  for  a  public  pound  or  jail  without 
making  compensation  to  the  abutting  owner;  -'^  nor,  for  a  market- 
house;  -^  nor,  for  a  house  in  which  to  confine  tramps.-^ 

§  99.    When  dedicated  for  street  purposes — not  an  imposition. 

Whenever  land  is  taken  or  dedicateil  for  a  city  street,  it  is  un- 
doubtedly appropriated  for  all  the  ordinary  and  usual  purposes  of 
such  a  street;  it  has  been  held  therefore  that  sewers  may  be  con- 
structed in  a  street  and  gas  and  water  pipes  may  be  laid  in  it  for  the 
purpose  of  supplying  the  inhabitants  with  water  and  gas.^*^  But  the 
laying  of  such  pipes  in  an  ordinary  country  road  is  the  imposition 
of  an  additional  servitude,  and  compensation  must,  therefore,  be 
made  to  the  abutting  ownier:"^  this,  therefore,  leads  us  to  discus? 
briefly  the  difference  between  a  city  street  and  a  public  highway — as 
is  commonly  understood — with  respect  to  what  constitutes  an  addi- 
tional servitude  on  each. 

§  100,     The  different  uses  to  which  streets  and  highways  may  be 
put. 

The  uses  to  which  streets  in  a  city  may  be  put  are  greater  and  more 
numerous  than  those  of  an  ordinary  road  or  highway  in  the  country. 
\Yith  reference  to  the  latter  all  that  the  public  acquires  is  the  ease- 
ment of  passage  and  its  incidents;  and  hence,  the  owner  of  the  soil 
parts  with  this  use  only,  retaining  the  soil :  by  virtue  of  this  owner- 

Jliiuliman  v.  Patterson,  etc.,  R.  Co.,  17  U51 ;   roid  v.  Chicago,  etc.,  R.   Co.,   14 

N.  J.  Eq.  75,86  Am.  Dec.  252;  Mahody  Wis.  009,  SO  Am.  Dec.  791. 

V.  Bu.shwick  R.  Co.,  91  N.  Y.  1-48,  43  -•  State  v.  Mayor,  etc.,  of  Mobile,  5 

Am.  Rep.  661.  Part.  27'),  30  Am.  Dec.  564. 

="  Southern   Pac.   R.    Co.   v.   Rud,   41  ^  State  v.  Laverack,  34  X.  J.  L.  201. 

Cal.   256:    Jurley  v.   Union  Branch   R.  -"' Winchester  v.  Capron,  63  N.  H.  605. 

Co.,   26   Conn.   249,   68  Am.   Dec.   392;  4  Atl.   795. 

Indianapolis,   etc.,   R.    Co.   v.   Hartley.  ^"  Croake  v.  Flatbush,  etc.,     Co.     29 

67    111.   43!i,    10   Am.   Rep.   624;    Eliza-  Hun.  24-5;   State  v.  Laverack,  34  X.  J. 

beth,  etc.,  R.  Co.  v.  Cowles,  10  Bush  382,  L.  201. 

19  Am.  Rep.  67;  Williams  v.  N.  Y.  Cen-  "  Bloonifield  G.  L.  Co.  v.  Calkins,  62 

tral  R.  To..   10  X.  Y.  07.  09  Am.  Dec.  X.  Y.  380;  Sternberg's  Appeal,  111  Pa. 

St.  35,  2  Atl.  105,  50  Am.  Rep.  246. 


94  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    100 

ship  he  is  entitled,  except  for  the  purposes  of  repair,  to  the  earth, 
timber,  and  grass  growing  thereon,  and  to  all  minerals,  quarries,  and 
springs  below  the  surface.  But  with  respect  to  the  streets  in  popu- 
lous places,  the  public  convenience  requires  more  than  the  mere  right 
of  way  over  and  upon  them.  They  may  need  to  be  graded,  and  there- 
fore the  municipal  authorities  may  not  only  change  the  surface,  but 
cut  down  trees  and  dig  up  the  earth ;  they  may  use  them  in  improv- 
ing the  street ;  and  they  may  make  culverts,  drains  and  sewers  upon  or 
under  the  surface.  Pipes  may  also  be  laid  under  the  surface  when  re- 
quired by  the  various  agencies  adopted  in  civilized  life,  such  as  water, 
gas,  electricity,  steam  and  other  things  capable  of  that  mode  of  dis- 
tribution.^^ 

§  101.    Cases  holding  not  entitled  to  compensation. 

In  consideration  of  the  fact  that  many  of  the  state  courts  have  dif- 
fered widely  on  this  subject — the  question  being  res  intergra  in 
some — we  have  deemed  it  proper  to  set  forth  as  briefly  as  possible 
some  of  the  most  important  opinions  of  the  different  courts  in  order 
that  the  reader  may  himself  see  the  ground  whereon  the  great  legal 
thinkers  have  used  their  reason.  While  we  are  aware  that  it  is  not 
usual  for  a  writer  to  quote  at  any  length  court  opinions,  yet  we  feel 
by  adopting  this  method,  all  who  may  peruse  this  work  may  be 
thrown  in  closer  touch  with  the  deep  and  profound  judicial  reasoners 
of  our  country  and  those  who  have  arrived  at  different  conclusions 
after  incessant  and  untiring  research.  In  accordance  to  such  method 
we  shall  first  take  up  the  cases  wherein  it  has  been  held  that  the  con- 
struction of  telegraph  and  telephone  lines  upon  a  street  or  public 
highway  does  not  constitute  an  additional  burden  to  the  easement 
and  thereby  entitle  the  abutting  landowner  to  additional  compensa- 
tion. 

^  2  Dillon,  Munc.  Corp.,    §§   65G,   688:  Pac.  870,  6G  L.  E.  A.   171;   Cumb.  Tel. 

Chespeake,  etc.,  Tel.  Co.  v.  :\Iackenzie,  Co.  v.  Aviitt,   85   S.   W.    (Kj-.),  204; 

74  Md.  36,  28  Am.  St.  Rep.  219,  21  Atl.  Gates  v.  Northwestern  Tel.  Ex.  Co.,  60 

690.     For  the  reason  that  the  uses  to  Minn.  530,  51  Am.  St.  Rep.  343,  63  N. 

which  streets    and    highways    may    be  W.    Ill,  28   L.   R.  A.   310;    Luther  v. 

put,  the  following  cases  hold  that  a  tel-  Bridgeman,  50  S.  E.   (W.  Va.)   40.  But 

ephone  line  on  a  highway  is  not  an  ad-  as   holding   to   the   contrary   effect,   see 

ditional  servitude:   ilcCamm    v.    John-  Anderson   v.    Delhi,   etc.,    Tel.    Co.,    66 

son  County  Tel.  Co.,  69  Kan.  210,  70  App.  Div.  89,  86  N.  Y.  Supp.  771. 


"§.    102]  CONSTKUCTION  AND  MAINTENANCE.  95 

§  102.     Same  continued — opinions. 

Judge  Mitchell  of  the  Minnesota  court,  while  considering  this  sub- 
ject and  the  nature  and  extent  of  the  public  easement  in  a  highway, 
has  this  to  say :  "If  there  is  any  one  fact  established  in  the  history 
of  society  and  of  the  law  itself,  it  is  that  the  mode  of  exercising  this 
easement  is  expansive,  developing  and  growing  as  civilization  ad- 
vances. In  the  most  primitive  state  of  society,  the  conception  of  a 
highway  was  merely  a  footpath ;  in  a  slightly  more  advanced  state,  it 
included  the  idea  of  a  way  for  pack  animals ;  and,  next,  a  way  for  ve- 
hicles drawn  by  animals — constituting,  respectively,  the  "iter,"  the 
"actus,"  and  the  "via"  of  the  Romans.  And  thus  the  methods  of  us- 
ing public  highways  expanded  with  the  gTowth  of  civilization,  until 
to-day  our  urban  highways  are  devoted  to  a  variety  of  uses  not 
known  in  former  times,  and  never  dreamed  of  by  the  o^vllers  of  the 
soil  when  the  public  easement  was  acquired.  Hence,  it  has  become 
settled  that  the  easement  is  not  limited  to  the  particular  methods  of 
use  in  vogue  when  the  easement  was  acquired,  but  includes  all  new 
and  improved  methods,  the  utility  and  general  convenience  of  which 
may  afterwards  be  discovered  and  developed  in  aid  of  the  general 
purpose  for  which  highways  are  designed.  And  it  is  not  material 
that  these  new  and  improved  methods  of  use  were  not  contemplated 
by  the  OMTier  of  the  land  when  the  easement  was  acquired  and  are 

more     onerous     to     him     than     those     then     in     use 

It  is  now  universally  conceded  that  urban  highways  may  be  used  for 
constructing  sewers  and  laying  pipes  for  the  transmission  of  gas,  wa- 
ter, and  the  like  for  public  use.  .  .  .  As  a  matter  of  fact,  most 
of  these  uses  were  unknown  when  the  public  easement  was  acquired 

in  many  of  the  streets  in  the  older  cities In  our  judgment, 

public  highways,  whether  urban  or  rural,  are  designed  as  avenues  of 
communication;  and,  if  the  original  conception  of  a  highway  was 
limited  to  travel  and  transportation  of  property  in  movable  vehicles, 
it  was  because  these  were  the  only  modes  of  communication  then 
knoAAm ;  that  as  civilization  advances,  and  new  and  improved  methods 
of  communication  and  transportation  are  developed,  these  are  all  in 
aid  of  and  within  the  general  purpose  for  which  highways  are  de- 
signed. Whether  it  be  travel,  the  transportation  of  persons  and 
property,  or  the  transmission  of    intelligence    and    whether    accom- 


96  TELEGRAPH  AXD   TELEPHONE   COMPANIES,  [>§,    102 

plislied  bj  old  methods  or  by  new  ones  they  are  all  included  within 
the  public  "highway  easement/'  and  impose  no  additional  servitude 
on  the  land,  provided  they  are  not  inconsistent  with  the  reasonably 
safe  and  practical  use  of  the  highway  in  other  and  usual  and  neces- 
sary modes,  and  provided  they  do  not  unreasonably  impair  the  spec- 
ial easement  of  abutting  o\\aiers  in  the  streets  for  purposes  of  access, 
light,  and  air."  ^^ 

§  103.     Same  continued — new  use  of  the  easement. 

The  courts  of  Missouri  uniformly  hold  that  the  construction  of 
telegraph  and  telephone  wires  along  and  upon  the  streets  and  public 
highways,  is  not  a  new  and  additional  servitude  thereon,  but  is  a 
new  use  of  the  easement  to  which  these  highways  may  be  put.^*  One 
of  the  decisions  ^^  in  that  state  was  based  on  the  following  reasons: 
"These  streets  are  required  by  the  public  to  promote  trade  and  facil- 
itate communications  in  the  daily  transaction  of  business  between 
the  citizens  of  one  part  of  the  city  Avith  those  of  another,  as  well  as 
to  accommodate  the  public  at  large  in  these  respects.  If  a  citizen 
living  or  doing  business  on  one  end  of  Sixth  street  wishes  to  com- 
municate with  a  citizen  living  and  doing  business  on  the  other  end, 
or  at  any  intermediate  point,  he  is  entitled  to  use  the  street,  either 
on  foot,  on  horseback,  or  in  a  carriage,  or  other  vehicle,  in  bearing 
the  message.  The  defendants  in  this  case  propose  to  use  the  streets 
by  making  the  telephone  poles  and  wires  the  messenger  to  bear  such 
communications  instantaneously  and  with  more  dispatch  than  any 
of  the  above  methods,  or  any  other  known  method  of  bearing  oral 
communications,  i^ot  only  would  such  communications  be  borne  with 
more  dispatch,  but  to  the  extent  of  the  niunber  of  communications 
daily  transmitted  by  it,  the  street  would  be  relieved  of  that  number 
of  footmen,  horsemen  or  carriages.  If  a  thousand  messages  were 
daily  transmitted  by  means  of  telephone  poles,  wires  and  other  appli- 
ances used  in  telephoning,  the  street  through  these  means  would  serve 

=^Cates  V.  Northwestern  Tel.,  etc.,  Co.  Tel.  Co.,  8S  Mo.  258,  57  Am.  Rep.  398.: 

60  Minn.  539,  57  Am.  St.  Kep.  544,  63  St.  Loui.s  v.  Bell  Tel.  Co.,  96  Mo.  623, 

N.  W.  Ill,  28  L.  R.  A.  310.  9  Am.  St.  Rep.  370. 

»»Gay  V.   Mut.   U.   Tel.   Co..    12   Mo.  ^sj^ija  gidg.  Assn.  v.  Bell  Tel.  Co., 

App.    485;    Julia    Bldg.    Assn.    v.    Bell  above  cited. 


<^    103]  CONSTEUCTIOX  AND  MAINTENANCE.  97 

the  same  purpose,  which  would  otlierwibe  require  the  use  either  by  a 
thousand  footmen,  horsemen  or  carriages  to  effectuate  the  same  pur- 
pose.    In  this  view  of  it  the  erection  of  telephone  poles  and  wires  fur 
the  transmission  of  oral  messages,  so  far  from  imposing  a  new  and 
additional  servitude,  would,  to  the  extent    of    each    message    trans- 
mitted, relieve  the  street  of  a  servitude  or  use  by  a  footman,  horse- 
man or  carriage.     If  it  be  true,  as  laid  down  by  the  authorities  herein 
cited,  that  ^vhen  the  public  acquires  the  right  to  a  street,  either  by 
dedication,  grant  or  communication,  the  municipality  has  power  l^^ 
appropriate  it  not  only  to  such  uses  as  are  common  and  in  vogue 
at  the  time  of  its  acquisition,  but  also  to  such  new  uses  as  advanced 
civilization  may  suggest,  as  conducive  to  the  public  good,  the  conclu- 
sion is  inevitable  that  the  use  of  Sixth  street  in  the  manner  and  f<>r 
the  purpose  proposed  is  allowable,  for  it  cannot  with  any  show  of 
reason  be  denied,  that  the  means  these  appliances  would  afford  for 
the  instantaneous  transmission  of  communications  for  the  transaction 
of  business,  without  resorting  to  the  slower  and  common  methods  of 
bearing  them,  would  be  conducive  to  the  public  good,  and  make  the 
street  by  these  means  serve  one  of  the  chief  purposes  for  which  it 
was  dedicated.     But  it  is  argued  that  the  erection  of  two  telephone 
poles,  each  eighteen  inches  at  the  bottom  with  a  gradual  taper  to  the 
top,  would  obstruct  the  street,  and  deny  to  the  public  the  complete  and 
unrestricted  use  of  the  street.     This  arg-ument,  I  think  is  more  spe- 
cious than  sound.     It  is  true  that  to  the  extent  of  the  space  of  eigh- 
teen inches  each  of  the  poles  proposed  to  be  erected  would  be  an  ob- 
struction, but  the  same  could  be  said  of  lamp-posts  erected  on  the 
streets  of  a  city,  the  necessities  of  which  might  require  its  streets  to 
l)e  lighted  with  oil,  gas  or  electric  lights;  and  yet  no  one  would  lie 
heard  to  complain  that  the  lamp-posts  constituted  such  an  obstructi<Mi 
or  impediment  to  the  free  use  of  the  streets  as  to  demand  their  re- 
moval.    ...     If  the  conclusions  announced  in  the  foregoing  part 
of  this  opinion,  that  all  the  uses  to  which  a  street  may  properly  be 
devoted  are  to  be  regarded  as  permitted  by  and  included  in  the  orig- 
inal appropriation  or  dedication  of  the  street,  and  that  the  erectiou 
and  maintenance  of  telephone  poles  as  proposed  is  one  of  these  uses. 
Lind  that  in  digging  holes  through  the  stone  slabs  and  stone  walks  in 
which  to  plant  them,  there  is  no  taking  of  private  property  of  the 
T.  fc.  T.— 7 


9S  TELEGRAPH  AXD  TELEPHOXE   COMPANIES.  ['§>    103 

abutting  loto^vner  entitling  him  to  compensation,  are  correct  it  would 
seem  logically  to  follow  that  damages  resulting  from  such  use  need 
not  be  compensated  for.  If,  bj  reason  of  the  dedication  the  public 
have  the  right  to  apply  the  private  property  of  the  plaintiff  to  the 
use  proposed,  without  his  being  entitled  to  compensation,  how  can  it 
be  that  it  becomes  entitled  to  compensation  for  damages,  following 
as  an  incident  from  an  act  which  the  dedicator  by  his  dedication 
has  authorized  to  be  done  ?  If  the  dedication  of  the  street  is  suffi- 
ciently operative  to  allow  private  property  in  the  soil  of  the  street  to 
be  actually  invaded,  and  physically  taken  for  a  street  use  without 
compensation,  why  is  it  not  sufficiently  operative,  if  in  such  taking 
damages  ensue,  to  relieve  the  taker  from  the  payment  of  such  dam- 
ages ?  If,  by  dedicating  property  for  a  street,  the  dedicator  gives 
up  his  right  to  compensation  for  the  uses  included  in  the  dedication, 
how  can  it  be  said  that  he  does  not  also  give  up  his  right  to  compensa- 
tion for  damages  to  adjacent  property  not  taken,  resulting  from  the 
application  of  the  street  to  use  which  by  his  dedication  he  authorized 
it  to  be  put  ?" 

§  104.     Same  continued — upholding  same. 

It  has  been  held  by  other  courts  that  the  above  rule  was  law,  and 
that  the  legislature  might  authorize  the  construction  of  lines  of  these 
companies  upon  the  highways  without  compensating  the  abutting 
landowner."®  The  court  in  one  of  these  cases,  said:  ''When  the 
land  was  taken  for  a  highway,  that  which  was  taken  was  not  merely 
the  privilege  of  traveling  over  it  in  the  then  known  vehicles,  or  using 
it  in  the  then  known  methods  for  either  the  conveyance  of  property 
or  transmission  of  intelligence.  .  .  .  The  discovery  of  the  tel- 
egraph developed  a  new  and  valuable  mode  of  communicating  intel- 

^  Pierce  v.   Drew,    136  Mass.   75,   49  W.    145,   24   L.   R.    A.    721n;    Compare 

Am.  Eep.  7.     See  also  Hewett  v.  West,  Williams   v.    Erie    Tel.    Co.,    37    Minn. 

U.   Tel.    Co.,   4  Mackay    (D.    C.)    424;  347;   Gay  v.  ]Mut.  U.  Tel.  Co.,   12  Mo. 

Magee  v.  Overshiner,   150  Ind.   127,  49  491;    State  v.    St.   Louis,  etc.,   R.   Co., 

N.  E.  951,  65  Am.  St.  Rep.  358,  40  L.  86   Mo.   288;    Jforshfield   v.   Rocky  Mt. 

R.    A.    370;    Irwin   v.    Great    Southern  Bell  Tel.   Co..   12   Mont.   102;   Kirby  v. 

Tel.    Co.,    37    La.   Ann.    (33;    Boston   v.  Citizens'  'Jel.  Co..  97  N.  W.  3;   Patton 

Richardson,     13  Allen      (Mass.)      160;  v.  ( 'haUaiino.^;i,   lOS  Tonn.   197. 
People  V.  Eaton,   100  Mich.  208,  59  X. 


^    105]  CONSTKUCTIOX  AND  MAIXTEXAXCE.  99 

ligencc.  Its  use  is  certainly  similar  to,  if  not  identical  with,  that 
public  use  of  transmitting  information  for  which  the  highway  was 
originally  taken,  even  if  the  means  adopted  are  quite  different  from 
the  post-box  or  the  mail-coach.  .  .  .  We  are  therefore  of  the 
opinion  that  the  use  of  a  portion  of  a  highway  for  the  public  use  of 
companies  organized  under  tlic  laws  of  the  state  for  the  transmission 
of  intelligence  by  electricity,  and  subject  to  the  supervision  of  the 
local  municipal  authorities,  which  has  Ix-cn  permitted  by  the  legisla- 
ture, is  a  public  use  similar  to  that  for  wliifli  the  highway  was  orig- 
inally taken,  or  to  which  it  was  originally  devoted  and  that  the  0A\Tier 
of  the  fee  is  entitled  to  no  further  compensation.  .  .  .  That  it 
was  the  intent  of  the  statute  to  grant  to  those  corporations,  formed 
under  the  general  incorporation  laws  for  the  purpose  of  transmit- 
ting intelligence  by  electricity,  the  right  to  consti*uct  lines  of  telegraph 
upon  and  along  highways  and  public  roads,  upon  the  locations  as- 
signed them  by  the  officers  of  the  municipalities  wherein  such  ways 
are  situated,  cannot  be  doubted.  .  .  .  There  remains  the  inquiry 
whether  there  is  any  objection  to  the  statute  because  it  does  not  pro- 
vide a  sufficient  remedy  for  the  owners  of  the  property  near  to  or 
adjoining  the  way,  M'ho  may  be  incidentally  injured  by  the  structures 
which  the  telegraph  companies  may  have  been  permitted  to  erect 
along  the  line  of  the  highway  and  within  its  limits.  .  .  .  The 
only  compensation  to  which  such  owner  is  entitled  is  that  which  the 
legislature  deems  just,  when  it  ]~»ormits  the  erection  of  these  struc- 
tures. The  legislature  may  provide  for  compensation  to  the  adjoin- 
ing owmers,  but  without  such  provision  there  can  be  no  legal  claim 
to  it,  as  the  use  of  the  highway  is  a  lawful  one." 

§  105.     The  ground  upon  which  these  cases  are  sustained. 

In  reviewing  these  cases  in  which  it  is  held  that  the  abutting  land- 
owner should  not  have  additional  compensation  for  the  construction 
of  a  line  of  telephone  along  and  upon  the  easement,  it  will  clearly  be 
seen  that  the  ground  upon  which  such  opinions  are  based  is,  that 
they  are  only  a  new  method  of  enjoying  an  old  existing  use,  and  one 
actually  in  the  minds  of  the  parties  at  the  time  the  easement  was  ac- 
quired.•'"       Some  of  the  authorities,  reaching  the  same  conclusion, 

*^  Echols  V.  EvansviUe  St.  R.  Co.,  7S  etc.,  K.  Co.  v.  Wliitinjr,  etc..  R.  Co.. 
Ind.   201.   41    Am.   Rep.   5G1;    Chicago,       139  Tnd.  207,  28  X.  E.  G04,  26  L.  R.  A. 


100  TELEGRAPH  AXD  TELEPHONE  COMPANIES.        [^    105 

treat  the  uses  of  streets,  arising  from  dedicatiou  or  condemnation, 
as  expansive,  and  not  confined  to  uses  already  permitted,  but,  as  ci\- 
ilization  advances  admitting  new  uses.^^  ''When  land  is  taken,"  as 
was  ably  said,  "or  dedicated  for  a  town  street,  it  is  unquestionably 
appropriated  for  all  ordinary  purposes  for  a  town  street,  not  merely 
the  purposes  to  which  such  streets  were  formerly  applied,  but  those 
demanded  by  new  improvements  and  new  wants.  Among  these  pur- 
poses is  the  use  for  carriages  which  run  on  a  ground  track;  and  the 
preparation  of  important  streets  in  large  cities  for  their  use  is  not 
only  a  frequent  necessity  which  must  be  supposed  to  have  been  con- 
templated but  it  is  almost  as  much  a  matter  of  course  as  the  grading 
and  paving."  ^^  ''When  these  lands  were  taken  or  granted  for  public 
highways,  they  were  not  taken  or  granted  for  such  use  only  as  might 
then  be  expected  to  be  made  of  them,  by  the  common  method  of  travel 
then  known,  or  for  the  transmission  of  intelligence  by  the  only 
methods  then  in  use,  but  for  such  methods  as  the  improvements  of 
the  country,  or  the  discoveries  of  future  times,  might  demand."  ^'* 
"The  discovery  of  the  telegraph  developed  a  new  and  valuable 
mode  of  communicating  intelligence.  Its  use  is  certainly  sim- 
ilar to,  if  not  identical  with,  that  public  use  of  transmitting  in- 
formation for  which  the  highway  was  originally  taken,  even  if  the 
means  adopted  are  quite  different  from  the  post-boy  or  the  mail- 
coach.  It  is  a  newer-discovered  method  of  exercising  the  old  public 
easement,  and  all  a]3propriate  methods  must  have  been  deemed  to 
have  been  paid  for  when  the  road  was  laid  out."  ^^ 

§  106.     Same  continued — not  things  of  motion. 

A  reason  given  why  they  are  considered  an  additional  servitude 
to  the  highways,  is,  that  given  by  some  courts  which  held  that  the 

337,    47   Am.    St.   Rep.    204;    Lockhart  Am.  St.  Rep.  543;  Detroit  City  R.  Co. 

V.    Craig   Street    R.    Co.,    139    Pa.    St.  v.  Mills,  85  Mich.  634,  48  N.  W.  1007. 

419,   21   All.   26;    Detroit   City   R.   Co.  =»  Elliott  on  Roads  and  Streets,  p.  529. 

V.  Mills,  85  Mich.  634,  48  X.  W.  1007.  approving  Cooley's  Const.  Limit.,  550. 

^Angeil  and  Ames  on  Corp.,   §312;  *"  People  v.  Eaton,  100  Mich.  208,  24 

Julia  BUg.  Assn.  v.  Bell  Tel.  Co.,  88  L.  R.  A.  721n,  59  N.  W.  145. 

Mo.   258,   57   Am.   Rep.   398;    Cates   v.  ■"Pierce  v.   Drew,    130  Mass.   75,   49 

Northwestern  Tel.,  etc.,  Co.,  60  Minn.  Am.  Rep.  7. 
.139,  03  IN.  W.  Ill,  28  L.  R.  A.  310,  51 


<^  106]  CONSTRUCTION  AND  MAINTENANCE.  101 

poles  arc  not  in  motion  as  are  ordinary  instruments  of  travel,  Lut 
this  idea  was  refuted  by  the  following  case:      "It  is  said  that  the 
primary  law  of  the  street  is  motion.      It  is  true,  motion  the  law  of 
the  street,  in  the  sense  that  the  person  or  thing  to  be  transmitted 
or  transported  must  move ;  but  it  is  not  true  in  the  sense  that  the  me- 
dium or  agency  by  or  through  which  it  is  conveyed  or  transmitted 
must  move.     Pipes  laid  for  the  transmission  of  water,  gas,  and  steam 
are  inunovable.      So  are  the  tracks  of  street  railway,  also  the  poles 
and  wires  of  the  trolley  system.     And  it  can  make  no  difference  in 
principle  whether  the  immovable  structure  is  on,  under,  or  above  the 
surface  of  the  ground,  for  the  rights  of  the  owner  of  the  fee  are  the 
same  in  either  case.      Subject  only  to  the  public  easement  for  high- 
way purposes,  he  remains  the  owner  of  the  land  upward  and  do^vn- 
ward  indefinitely.      If  the  transmission  of  intelligence  by  telegraph 
or  telephone  is  not  included  in  the  public  easement  in  a  highway,  it 
would  be  equally  an  invasion  of  his  rights  of  property,  even  if  the 
wires  were  placed  under  the  ground.     If  an  immovable  structure  in 
a  highway  constitutes  an  additional  servitude,  it  is  not  merely  be- 
cause it  is  immovable,  but  because  it  unreasonably  interferes  with 
the  general  use  of  the  street  by  the  public,  or  because  it  unreasonably 
impairs  the  special  easement  of  abutting  owners."^-    "Poles  and  wires 
for  electric  lighting  have  been  admitted    as    a    proper'  use,    on    the 
ground  that  the  streets  are  lighted  and  their  general  uses  thereby 
made  safer  and  more  expeditious.      Incidentally,  the  same  use  has 
been  employed  for  supplying  light  to  ])ublic,  business,  and  private 
houses.     Sewers  have  been  admitted  as  not  constituting  an  additional 
servitude  because  they  afforded  a  means  of  drainage  for  the  streets, 
although  one  use  was  in  carrying  the  waste  from  the  building  of  cit- 
izens.     Gas  mains  and  poles  were  admitted  in  like  manner  as  elec- 
tric lighting  systems  and  for  like  uses.      They  were  always  deemed 
to  constitute  a  beneficial  use  of  the  streets  as  in  some  degree  aiding 
in  the  means  or  opportunities  for  conducting  the  affairs  of  the  inhab- 
itants, and  in  facilitating  the  communication  indispensable  to  such 
affairs."  "3 

"Cutcs    V.    Northwestern,    etc.,    Tel.  "  :^^a,£:oe  v.  Ovorsliiner,  150  Ind.  127. 

Co.,  60  Minn.  539,  51  Am.  St.  Rep.  546,       05  Am.  St.  Eep.  360,  40  X.  E.  450.  40 
2S  L.  R.  A.  310,  63  N.  W.  111.  L.  R.  A.  370. 


102 


TELEGEAPII  AND  TELEPHONE  COMPANIES. 


[^  10- 


§  107.     Contrary  view — additional  servitude — so  held. 

While  the  reasoning,  to  the  effect  that  telegraph  and  telephone 
lines  constructed  upon  streets  and  country  highways  create  no  addi- 
tional servitude  thereon,  is  very  strong,  profound  and  apparently 
uncontrovertible,  yet  the  weight  of  opinion — and  that  more  recently 
promulgated — holds  that  they  do  create  a  different  use  of  the  ease- 
ment than  that  contemplated  by  the  parties  at  the  time  the  public  ac- 
quired this  right  and  thereby  entitling  the  abutting  landowner  to  be 
additionally  compensated.^''  In  discussing  this  side  of  the  point  at 
issue,  we  shall  first  deal  with  the  subject  when  the  title  to  the  fee 
of  the  easement  is  in  the  abutting  lotowner  or  land  owner ;  second, 
when  the  fee  is  in  the  public ;  and  third,  when  the  fee  is  in  a  third 
party.      And  while  discussing  each  of  these  subordinate  subjects,  it 


**  United  States.— Fac.  Postal  Tel. 
Cable  Co.  v.  Irwin,  49  Fed.  113;  Kes- 
ter  V.  West.  U.  Tel.  Co.,  108  Fed.  926. 

Illinois. — Goddard  v.  Chicago,  etc.,  R. 
Co.,  202  111.  362,  66  N.  E.  1066,  affirm- 
ing 104  111.  App.  536;  American  Tel., 
etc.,  Co.  V.  Jones,  78  111.  App.  372; 
Union  Electric  Tel.,  etc.,  Co.  v.  Apple- 
quist,  104  111.  App.  517;  Postal  Tel. 
Cable  Co.  v.  Eaton,  170  111.  573,  39  L. 
R.  A.  722,  62  Am.  St.  Rep.  390,  49 
N".  E.  311. 

Nebraska. — Brownson  v.  Albion  Tel. 
Co.,  93  N.  W.  201,  60  L.  R.  A.  426. 

Neio  Jersey. — Winter  v.  New  York, 
etc.,  Tel.  Co.,  51  N.  J.  L.  83,  16  Atl. 
188 ;  Nicoll  v.  New  York,  etc.,  Tel.  Co., 
62  N.  J.  L.  733,  72  Am.  St.  Rep.  666, 
42  Atl.  532;  Holsey  v.  Rapid  Transit 
St.  R.  Co.,  47  N.  J.  Eq.  380. 

Neio  York. — Metropolitan  Tel.,  etc., 
Co.  V.  Colwell  Lead  Co.,  50  N.  Y.  Super. 
Ct.  488;  Tiffany  v.  U.  S.  Illuminating 
Co.,  51  N.  Y.  Super.  Ct.  280,  67  How. 
Pr.  (N.  Y.)  73;  Andrews  v.  Delhi,  etc., 
Tel.  Co.,  36  Misc.   (N.  Y.)   23;  Gray  v. 


New  York  State  Tel.  Co.,  41  Misc.   (N. 
Y.)   108. 

North  Carolina. — Hodges  v.  West.  U. 
Tel.  Co.,   133  N.  C.  225,  45  S.  E.  572. 

North  Dakota. — Donovan  v.  Allert, 
11  N.  Dak.  289,  58  L.  R.  A.  775,  91 
N.  W.  441. 

OMo.— Dailey  v.  State,  51  Ohio  St. 
348,  37  N.  E.  710,  24  L.  R.  A.  724,  46 
Am.  St.  Rep.  578;  Galium  v.  Colimibus 
Edison  Electric  Light  Co.,  66  Ohio  St., 
166,  64  N.  E.  141,  58  L.  R.  A.  782; 
Schaff  V.  Cleveland,  etc.,  R.  Co.,  66 
Ohio  St.  215,  64  N.  E.  145;  Denver  v. 
U.  S.  Tel.  Co.,  10  Ohio  Dec.  273. 

Pennsylvania. — Lancaster,  etc..  Turn- 
pike Road  Com.  v.  Columbus  Tel.  Co., 
18  Lane.  L.  Rev.  161. 

Texas. — Erie  Tel.,  etc.,  Co.  v.  Kenne- 
dy, 80  Tex.  71. 

Virginia.— West.  U.  Tel.  Co.  v.  Wil- 
liams, 86  Va.  696,  19  Am.  St.  Rep.  908, 
6  L.  R.  A.  775n. 

Wasliinr/ton. — Spokane  v.  Colley,  16 
Wash.  610. 

Wisconsin. — Kruger  v.  Wisconsin  Tel. 
Co.,  106  Wis.  96,  81  N.  W.  1041. 


§    lOS]  CONSTRUCTION  AND  MAINTENANCE.  103 

shall  be  our  most  earnest  endeavor  to  harmonize  to  a  certain  degree, 
this  very  important,  comprehensive,  intricate  and  unsettled  subject 

§  108.     Same  continued — rights  included  in  an  easement. 

Before  taking  up  either  of  these  subjects,  it  may  be  well  to  learn 
what  are  the  uses  to  which  an  easement  may  be  put  in  order  that  they 
may  fall  within  the  meaning  of  the  term  of  public  travel;  or,  in 
other  Avords,  what  uses  were  contemplated  by  the  parties  at  the  time 
the  grant  was  made,  to  which  the  easement  might  be  put,  and  for 
which  consideration  w^as  given  ?  ''The  public  easement  ...  is 
primarily  a  right  of  passage  over  the  sui*face  of  the  highway  and  of 
so  using  and  occupying  the  land  within  it  as  to  facilitate  such  pas- 
sage. In  this  primary  right  are  included  the  grading,  paving,  clean- 
ing, and  lighting  of  the  highway,  the  construction  and  maintenance 
of  street  railways^"  with  the  apparatus  proper  for  their  use,  and 
the  maintenance  of  appliances  conducive  to  the  protection  and  con- 
venience of  travelers  while  using  the  way.  Secondarily,  the  ease- 
ment covers  uses  which,  though  their  relation  to  the  right  of 
passage  is  remote  or  even  fanciful,  are  so  generally  advantageous  to 
the  owners  of  the  fee,  the  owners  of  abutting  property,  that,  rather 
by  common  consent,  and  custom,  than  by  logical  deduction  from  the 
primary  design,  they  are  now  recognized  as  legitimate.  Such 
are  the  construction  and  maintenance  of  sewers,  water  pipes  and  gas 
pipes  for  the  convenience  of  persons  occupying  neighboring  lands."  ^® 
It  has  been  held,  however,  that  telephone  companies  do  not  fall  with- 
in the  meaning  of  an  easement  in  its  secondary  sense.^^  "The  pri- 
mary intention  and  idea  of  the  use  of  the  street  was  for  travel — 
moving  from  place  to  place  in  any  way  that  does  not  interfere  with 
the  use  of  the  street  for  travel  in  any  other  way.      The  manner  or 

*^  Baker  v.  Sclma  Street,  etc.,  R.  Co.,  as  well  as  passengers:  Chicago,  etc..  R. 

135  Ala.  552,  33  So.  685,  93  Am.  St.  Co.  v.  Milwaukee,  etc.,  R.  Co.,  95  Wis. 

Rep.  42;    San  Antonio,  etc.,  R.  Co.  v.  561,   60  Am.   St.  Rep.   136,  70  N.   W. 

Limberger.  88  Tex.  79,  30  S.  W.  533,  678,  37  L.  R.  A.  856. 

53   Am.   St.  Rep.   730;    Doan  v.   Lake  <•  State  v.  Loverack,  34  N.  J.  L.  201. 

St.,  etc.,  R.  Co.,  165  111.  570,  36  L.  R.  *^  Nicoll  v.  New  York,  etc.,  Tel.  Co.. 

A.  97,  56  Am.  St.  Rep.  265,  46  N.  E.  62  N.  J.  L.  733,  72  Am.  St.  Rep.  666, 

520.     It  is  otherwise  if  the  railway  is  42  Atl.  583. 
for  the   transportation  of  merchandise 


104  TELEGRAPH  AND  TELEPHONE    COMPANIES.  \_^    lOS 

mode  of  travel  is  not  restricted  to  those  means  known  or  in  use  at 
the  time  of  the  dedication,  but  may  be  those  modes  of  travel  that 
are  the  result  of  modern  inventions."  *^  A  telephone  company  ^'is 
a  totally  distinct  and  different  kind  of  use  from  any  heretofore  known. 
It  is  not  a  mere  difference  in  the  kind  of  vehicle,  or  in  their  number 
or  capacity,  or  in  the  manner,  method,  or  means  of  location."  '*^ 
''Wliatever  the  means  used,  the  object  to  be  attained  is  passage  over 
the  territory  embraced  within  the  limits  of  the  street.  Whether  as 
a  pedestrian,  or  on  a  bicycle,  or  in  a  vehicle  drawn  by  horses  or  other 
animals,  or  in  a  vehicle  propelled  by  electricity,  or  in  a  car  drawn  by 
horses  or  moved  by  electricity,  the  object  to  be  gained  is  moving  from 
place  to  place."  ^^ 

§  109.    Same  continued — fee  in  abutting  ov^ner. 

The  fee  in  an  easement  for  public  travel  may  be  either  in  the 
abutting  lotowner  or  landowner,  which  is  most  often  the  case;^^  or,  h 
may  be  in  the  public,  acquired  at  the  time  the  easement  was  obtained ; 
or,  it  may  be  in  a  third  part}^,  or  one  from  whom  the  abutting  owner 
acquired,  directly  or  indirectly,  possession  of  his  property,  exclusive 
of  the  title  to  the  easement  which  was  granted  before  the  abutting 
owTier  acquired  possession  of  his  property.  If  the  fact  be  conceded, 
that  the  public  only  acquires  the  easement  for  the  purpose  of  travel 
and  the  incidents  pertaining  thereto — and  such  as  was  described 
above — any  uses  other  than  these,  would  be  nothing  more  nor  less 
than  taking  the  property  of  the  abutting  owner  without  due  compen- 

^*  Donovan  v.  Allert,  11  X.  Dak.  280,  collected.     The  presuuiption    respecting 

91  N.  W.  441,  95  Am.  St.  Rep.  726,  58  ownership    of    the    land    over    which    a 

L.  R.  A.  775.  liighway  runs  is,  that  the  adjacent  pro- 

*'•'  Eels  V.  American  Tel.,  etc.,  Co.,  14.3  prietors  ei;ch  own  to  the  middle  of  such 

X.  Y.   13:3.  38  N.  E.  202,  25  L.  R.  A.  highway;   or  if  the  same  person  owns 

G40.  on  both  sides,  that  the  whole  road  be- 

=>»  Donovan  v.  Allert,  UN".  Dak.  289,  longs  to  him,  subject  to  the  public  ease- 

91   N.   W.   441,   95   Am.    St.   Rep.   725,  ment  of  the  right  of  passage  in  either 

.^8  L.  R.  A.  775.  case:      West.   U.  Tel.   Co.  v.  Williams. 

'"^  Peck  V.  Smith,  1  Conn.  103,  6  Am.  86  Va.  696,  19  Am.  St.  Rep.  908,  8  L. 

Dec.  216;  Dovaston  v.  Payne,  2  Smith's  R.  A.  429,  11  S.  E.  100. 
Lead.  Cas.  90,  where  the  authorities  are 


<§)    110]  CONSTRUCTION  AND  MAIXTKXA  .XCK.  105 

satioD,  whij-li  would  be  more  than  the  state  would  have  the  power  to 
do.  The  federal  constitution  guarantees  that  no  private  property 
shall  be  taken  for  public  use  without  due  compensation ;  and,  while 
some  of  the  states  have  embodied  this  same  provision  in  their  consti- 
tutional laws,  most  of  tliciii  have  enlarged  on  these  and  provided  that 
no  private  ])i-operty  sliall  be  taken,  injured  or  damaged  for  public 
use  without  compensation.  It  is  very  clear  that  the  private  property 
of  an  individual  and  such  as  has  not  theretofore  been  granted  for  an 
easement  cannot  be  taken  against  the  consent  of  the  owner  or  by  a 
condemnation  proceeding  for  public  use  without  first  compensating 
him  for  such  property.  This  fact  is  too  old  to  be  discussed.  It  wa? 
held  in  early  times  that  the  owner  had  to  be  wholly  deprived  of  the 
possession,  use  and  occupation  of  the  land,  but  a  more  just  and  liberal 
doctrine  has  long  since  been  established.  A  man's  property  may 
be  taken  within  the  meaning  of  the  constitutional  provision,  although 
his  title  and  possession  remains  undisturbed.^-  It  follows,  then, 
that  when  the  abutting  owner's  reversionary  interest  in  the  property 
on  which  an  easement  has  been  granted  has  been  taken  for  any  other 
use  than  that  for  which  it  was  granted,  his  guaranteed  rights  have 
been  disregarded ;  for  while  his  reversionary  interest  may  appear  in- 
significant and  far-fetched,  yet  this  should  be  as  securely  protected 
by  the  highest  laws  of  our  land  as  the  little  spot  around  which  his 
dearest  and  most  pleasant  memories  dwell,  and  upon  which  majesti- 
cally and  grandly  stands  the  walls  of  his  castle. 

§  110.     Same  continued — abutter's  interest. 

"The  abutter  has  the  exclusive  right  to  the  soil,  subject  only  to 
the  easement  of  right  of  passage  in  the  public  and  in  the  incidental 
right  of  property  fitting  the  way  for  the  use.  Subject  only  to  the 
public  easement,  he  has  all  the  usual  rights  and  remedies  of  the  owner 
of  the  freehold.  He  may  sink  a  drain  under  the  road  ...  he 
may  mine  under  it."  ^^  He  may  maintain  trespass  against  one  wh'i 
imlawfully  cuts  and  carries  away  the  grass,  trees,  or  herbage  and  even 
against  one  who  stands  upon  the  sidewalk  in  front  of  his  premises  and 
uses  abusive  language  against  him,  refusing  to  depart.     He  may  also 

"Kennetfs  Petition,  24  X.  H.  139.  "Elliott   on    Eoads   and     Stroots.    p. 

51!t. 


106  TELEGRAPH  AND  TELEPHONE   CO:^^PANIES.  [§    110 

maintain  ejectment  against  a  railroad  company  which  has  placed  its 
track  upon  his  side  of  the  street  without  paying  or  tendering  damages 
therefor,  or  against  an  individual  who  has  wrongfully  and  unlawfully 
encroached  thereon."  ^^  He  "is  entitled  ...  to  the  entire  use 
of  the  land,  except  the  right  which  the  public  has  to  use  the  land 
and  materials  thereon  for  the  purposes  of  building  and  maintaining 
a  highway  suitable  for  the  safe  passage  of  the  travelers."  ^^  He 
"is  entitled  to  free  access  to  his  house,  and  light  and  air  for  his  house, 
without  obstruction.  If  by  any  public  purposes  inconsistent  with  the 
gTant  to  the  public  of  the  use  of  the  street,  the  street  is  obstructed  in 
front  of  his  lot  abutting  on  such  street,  such  use  entitles  him  to  com- 
pensation." ^'^  The  question  is,  Does  the  construction  and  stringing 
of  telephone  wires  along  and  upon  a  public  street  interfere  with  the 
free  passage  thereon  or  obstruct  ingress  and  egress  of  air,  light  and 
passage  to  the  abutting  owners  of  property  ?  As  said  before,  the 
amount  of  damages  or  the  degree  or  the  character  in  which  the  in- 
terference or  obstruction  is  made  should  have  very  little  to  do  in  the 
consideration  of  the  question.  The  main  question  is,  Is  there  any 
interference  with  or  obstruction  to  the  uses  of  the  easement;  or,  is 
it  used  for  an  additional  purpose  other  than  that  for  which  it  was 
granted  ? 

§  111.     Same  continued — exclusive  and  public  use. 

For  the  reason  that  the  public  has  acquired  an  easement  over  pri- 
vate property  for  the  purposes  of  travel,  is  no  reason  why  a  quasi- 
public  corporation,  created  for  the  convenience  and  welfare  of  the 
government,  but  more  specially  for  private  gain,  should  appropriate 
part  of  this  easement  for  the  use  of  such  companies  without  compen- 
sating the  owner  of  the  fee  when  the  consent  has  not  already  been 
obtained.  "It  is  true  that  the  use  of  a  telegraph  company  is  a  pub- 
lic use.  The  company  is  a  public  corporation,  as  to  which  the  public 
has  rights  which  the  law  will  enforce  but  these  public  rights  can 
only  be  obtained  by  paying  for  them.      The  use,  while  in  one  sense 

"Elliott  on  Roads  and    Streets,    p.  s"  Donovan  v.  Allert,  UN.  Dak.  289, 

535.  91  K  W.  441,  95  Am.  St.  Rep.  720,  58 

=°Cole  V.  Drew  and  Wife,  44  Vt.  49,       L.  R.  A.  775. 
S  Am.  Rep.  3G3. 


§    112]  CONSTRUCTION  AND  MAINTENANCE.  107 

public,  is  not  for  the  public  generally.  It  is  fur  the  private  profit 
of  the. corporation.  .  .  .  There  is  no  reason  in  law  or  common 
justice  why  it  should  not  pay  for  what  it  needs  in  the  prosecution  of 
its  business."  ^"^  The  streets  and  highways  were  dedicated  to  the 
public  for  the  exclusive  and  unobstructed  passage  of  its  travelers 
and  any  use  or  hindrance  to  which  it  might  othenvise  be  subjected, 
would  be  in  violation  of  the  grant.  To  use  it  for  telephonic  pur- 
poses would  have  this  effect.  *'The  erection  of  poles  in  the  streets  by 
telegraph  or  telephone  companies  is  a  permanent  and  exclusive  occu- 
pation of  the  streets  by  such  companies,  to  the  continued  exclusion 
of  the  remainder  of  the  public,  and  to  that  extent  is  a  continued  ob- 
struction of  the  street."  '^^ 

§  112.     Same  continued — opinion  on  subject. 

As  has  been  very  ably  said :  ''That  the  erection  of  a  telegraph  line 
upon  a  highway  is  an  additional  servitude  is  clear  from  the  author- 
ities. ...  If  the  right  acquired  by  the  commonwealth  in  the 
condemnation  of  a  highway  is  only  the  right  to  pass  along  over  the 
highway  for  the  public,  then,  if  the  untaken  parts  of  the  land  are 
his  private  property,  to  dig  up  the  soil  is  to  dig  up  his  soil;  to  cut 
down  the  trees  is  to  cut  down  his  trees;  to  destroy  the  fences  is  to 
destroy  his  fences;  to  erect  any  structure,  to  affix  any  pole  or  post, 
in  and  upon  his  land,  is  to  take  possession  of  his  land ;  and  all  these 
interfere  with  his  free  and  unrestricted  use  of  property.  If  the  com- 
monwealth took  this  without  just  compensation  it  would  be  a  viola- 
tion of  the  constitution.  The  commonwealth  cannot  constitutionally 
grant  it  to  another.  It  is  true  that  the  use  of  the  telegraph  company 
is  a  public  use ;  that  the  company  is  a  public  corporation,  as  to  which 
the  public  has  rights  which  the  law  will  enforce.  But  the  public  rights 
can  only  be  obtained  by  paying  for  them.  The  use  while  in  one  sense 
public  is  not  for  the  public  generally ;  it  is  for  the  private  profit  of 
the  corporation.  It  is  its  business  enterprise,  engaged  in  for  gain. 
The  services  can  only  be  obtained  upon  their  being  paid  for.  There 
is  no  reason,  either  in  law  or  common  justice,  why  it  should  not 

"West.  U.  Tel.   Co.   v.   Williams,   80  <«  .Tayms  v.  Omaha  St.  K.  Co.,  53  Neb. 

Va.  696,  19  Am.  St.  Rep.  908,  11  S.  E.       r,.si.  74  X.  \V.  (i7.  39  L.  R.  A.  751. 
109,  6  L.  R.  A.  775n. 


lOS  TELEGRAPH  AND   TKI.EPHONE   COIMPANIES.  [<§>    112 

par  for  ^vbat  it  needs  in  the  prosecution  of  its  business.  Upon  this 
burden  being  placed  upon  it,  it  can  complain  of  no  hardship ;  it  is 
the  common  lot  of  all.  If  the  said  company  has  use  for  the  private 
property  of  a  citizen  of  this  commonwealth,  and  it  is  of  advantage 
to  it  to  have  the  same,  it  is  illogical  to  argue  that  the  property  is  of 
small  value  to  the  plaintiff,  and  in  the  aggregate  a  great  matter  to 
the  plaintiff  in  error.  This  argument  is  not  worth  considering;  it 
cuts  at  the  very  root  of  the  rights  of  property.  It  would  apply  with 
equal  force  to  all  the  transactions  of  life.  It  is  sufficient  to  say,  tlie 
aegis  of  the  constitution  is  over  this  as  over  all  other  private  prop- 
erty rights,  and  there  is  no  power  which  can  divest  it  without  just 
compensation."  ^^ 

§  113.    Same  continued — mandatory  injunction  allowed. 

In  the  following  case  in  which  a  telephone  company  was  enjoined 
from  erecting  its  poles  upon  the  streets  without  first  obtaining  the 
consent  of  the  abutting  owner  or  compensating  him  for  such  right  the 
court  said,  that:  "The  defendants,  a  telephone  company,  without 
any  leave  or  license  from  or  consent  by  the  complainant,  but,  on  the 
other  hand,  against  his  protest  and  remonstrance,  and  in  disregard 
of  his  warning  and  express  prohibition,  and  without  condemnation, 
or  any  other  steps  to  'that  end,  set  up  their  poles  upon  his  lands 
It  is  enough  to  say  that  it  does  not  appear  that  the  road 
board  had  any  power  to  authorize  any  one  to  set  up  poles  in  the  land 
of  the  highway,  and  thus  subject  the  land  to  an  additional  servitude 
besides  that  for  which  it  was  condemned.  What  has  been  said  is 
sufficient,  of  itself,  to  establish  the  right  of  complainant  to  relief; 
for  in  order  to  justify  the  defendants  in  setting  up  the  poles,  it  is 
necessary  for  them  to  show  that  they  have  acquired  the  right  to  do 
so,  either  by  consent  or  by  condemnation  from  the  owner  of  the  soil. 
The  designation  by  the  city  or  town  authorities  of  the  streets  where 
the  poles  may  be  set  up  is  not  enough."  ®° 

^''West.  U.  Tel.  Co.  v.  Williams,  86       Tel.  Co.  v.  Mackenzie,  74  Md.   3G,  2S 
Va.  696,  11  S.  E.  109,  19  Am.  St.  Rep.       Am.  St.  Hep.  219. 

908,  6  L.  R.  A.  775n ;  Chcspeake,  etc.,  ""  Broome  v.  New  York,  etc.,  Tel.  Co.. 

42  N.  J.  Eq.  141,  7  Atl.  851. 


<§     115]  COXSTKL'CTIOX  AND  MAINTK.N  A.N  u h.  109 

§  114.     When  the  fee  is  in  the  public. 

There  may  be  instances  when  the  fee  to  the  land  over  which  the 
easement  was  laid  out,  is  in  the  public  and  acquired  at  the  same  time 
the  easement  was  granted;  then,  the  question  which  presents  itself 
for  consideration  is,  Whether  or  not  this  affects  the  rights  of  the 
abutter  for  additional  compensation ;  or,  in  other  words,  is  the  abut- 
ter entitled  to  additional  compensation  from  a  telephone  company  for 
the  erection  of  its  lines  along  the  streets,  whether  the  fee  to  the  ease- 
ment is  in  the  public  or  in  himself?  While  a  majority  of  the  courts 
hold  that  it  makes  very  little,  if  any,  difference  as  to  who  owms  the 
fee,^^  yet  there  are  some  which  make  a  distinction.  This  distinction 
is  shown  in  the  following  case,  in  which  the  court,  said:  "It  ap- 
peared that  the  i:)oles  and  wares  were  erected  by  complainant  under 
a  grant  from  the  board  of  supervisors  so  to  do,  but  without  the  con- 
sent and  against  the  protest  of  the  defendants.  The  right  of  way 
granted  to  the  supervisors  was  for  a  public  road,  that  is  to  say,  a  way 
to  be  used  by  the  public  for  ordinary  travel.  Where  the  fee  of  the 
highway  is  vested  in  the  public,  there  is  no  valid  legal  objection  to 
the  grant  by  the  public  of  a  right  to  erect  such  poles  and  wires,  with- 
out regard  to  the  adjacent  property-holders ;  but  where,  as  here,  the 
fee  of  the  highway  remains  in  the  adjacent  owner,  and  its  use  for 
public  purposes  of  public  travel  has  been  granted.  I  think  it  clear 
that  every  use  of  the  highway  not  in  the  line  of  such  travel  is  an 
additional  burden,  for  which  the  proprietor  of  the  fee  is  entitled  to 
additional  compensation  and  which  cannot  be  constitutionally  taken 
from  him  without  his  consent  except  by  proceedings,  regularly  insti- 
tuted and  ]irosoentod  according  to  law."  ^- 

§  115.     The  distinction — in  abutting  owner. 

While  a  great  miniber  of  the  courts,  which  are  composed  of  the 
ablest  expounders  of  the  laws  of  jurisprudence,  have  declared  that  the 

°'Sto\vers   v.    Postal   Tel.    Cable   Co.,  etc.,  Tel.  Co.,  42  N.  J.  Eq..  141,  7  Atl. 

GS  Miss.  559,  9  So.  356,  24  Am.  St.  Rep.  851.     Contra,  Hewett  v.  West,  U.  Tel. 

290,  12  L.  R.  A.  864n;  Board  of  Trade  Co.,  4  Mackey  424;  Pierce  v.  Drew,  13G 

Tel.  Co.  V.  Barnett.  107  111.  507,  47  Am.  Jlass.  75,  49  Am.  Rep.  7;  Julia  Bld.2. 

Rep.  453;   Beesenbury  v.   Mut.  U.  Tel.  Assn.  v.  Bell  Tel.  Co.,  88  Mo.  258,  57 

Co.,  11   Abb.   N.  C.  440;   ^letropolitan,  Am.  Rep.  39S. 

etc.,   Tel.   Co.  v.   Cohvell   Lead   Co.,   50  <^-  Pacific  Postal  Tol.  Co.  v.  Irwin.  49 

X.  Y.  Sunt.  rt.  4SS:   Broome  v.  X.  Y.,  Fed.  ll:'. 


110  TELEGKAPH  AND   TELEPHOJSE   COMPANIES.  [§    115 

abutter's  right  to  additional  compensation  is  not  affected  by  the  fact 
that  the  fee  to  the  land  on  which  the  easement  has  been  laid  ont  is 
in  the  pnblic;  yet  we  are  inclined  to  believe  and  are  forced  to  as- 
sert that  it  is  affected  to  snch  an  extent  that  he  will  not  be  entitled 
to  additional  compensation  for  such  use  unless  it  materially  inter- 
feres with  the  easement  of  access  to  his  property  or  passage  over  the 
streets.  Suppose  we  take  a  case  where  the  fee  to  the  land,  on  which 
is  laid  out  an  easement,  remains  in  the  grantor  or  the  abutting  lot- 
o-\ATier.  Here  the  public  only  acquires  the  riglit  to  travel  over  the 
easement,  and  all  other  rights,  titles  and  interest  to  the  land  are  in 
the  grantor ;  then  if  the  public  should  lose  its  right  in  the  easement, 
which  may  be  done,  by  a  relinquishment  of  its  rights,  what  would  be- 
come of  these  rights  ?  Would  they  not  revert  to  the  abutting  owner, 
and  that,  too,  whether  he  acquired  his  interest  before  or  after  the 
grant  of  the  easement  ?  He  most  assuredly  would.  Let  us  suppose 
again,  that  a  telephone  company  is  constructed  on  this  easement,  with- 
out the  abutting  owner's  consent  or  without  appropriating  additional 
compensation  to  him;  and  the  same  is  there  at  the  time  the  public 
loses  its  easement,  can  it  be  held  for  a  moment  that  the  company 
could  continue  to  use  the  easement  after  the  title  has  reverted  to  the 
original  owner,  without  making  compensation  to  him  or  obtaining 
his  consent  ?  If  it  should  have  this  right,  there  might  be  some  rea- 
son in  holding  that  it  might  occupy  this  easement  for  its  right  of 
way  before  the  public  casement  has  been  lost,  without  giving  addi- 
tional compensation  to  the  owner  of  the  fee ;  but  this,  as  we  hold — 
and  the  same  opinion  is  indulged  in  by  most  of  the  late  courts,  as 
we  have  shown — is  not  the  case.  The  same  plausible  reason  might 
be  entertained,  that  a  telephone  company  could  as  well  continue  to 
occupy  an  easement  to  which  the  public  had  lost  its  interest — and 
by  reason  of  which  the  public  interest  had  reverted  back  to  the 
abutting  owner — as  this  company  would  have  to  occupy  other  pri- 
vate property  of  the  abutting  owner  and  that  over  Avhich  no  easement 
had  ever  been  granted. 
§  116.     Same  continued — in  the  public. 

The  same  results  would  not  occur  should  the  fee  be  in  the  public.*^^ 
Under  these  circmnstances   \vc  can  hardly  conceive  of  an  instance 

«*  Cleveland  Burial  Case  Co.  v.  Erie       v.  Wisconsin  Tel.  Co.,  lOG  Wis.  90,  81 
R.  Co.,  24  Ohio  Cir.  Ct.   107;  Kruger       X.  W.  lOSl,  50  L.  E.  A.  298. 


§    116]  CONSTRUCTION  AND  MAINTENANCE.  Ill 

when  the  public  would  lose  its  fee  in  the  land  on  which  the  ease- 
ment is  laid  out  by  any  legal  proceeding.  It  surely  would  not  by 
non-user.  Then,  if  this  is  the  case,  the  telephone  company  could 
continue  to  use  the  easement  as  a  right  of  way,  even  after  a  discontin- 
uance on  the  part  of  the  public  to  use  the  easement.  While  it  is 
not  very  clear  to  our  mind,  yet  we  are  inclined  to  believe  that  the 
public  might  exact  of  these  companies  a  compensation  for  the  use 
of  its  easement,  but  the  same  would  have  to  be  done  by  a  statute  to 
that  effect.  \Vlien  the  legislature  gives  to  telephone  companies  the 
authority  to  construct  their  poles  and  lines  along  and  upon  the  public 
highways  and  streets,  the  state  then  at  that  time  gives  the  consent 
for  these  companies  to  occupy  these  highways  after  they  have  com- 
plied with  certain  requirements  and  conditions — among  which  one 
may  be  for  compensation.  When,  in  fact,  the  construction  of  these 
lines  upon  a  street  or  highway  is  an  additional  servitude  thereon,  the 
public,  if  it  can,  is  the  only  one  who  can  complain.  It  therefore 
follows  that  if  the  owner's  easement  of  access  to  his  property  or  his 
passage  over  the  streets  is  not  interfered  with,  he  cannot  be  heard 
to  complain.  In  other  words,  he  cannot  maintain  an  action  for  an 
injury  to  the  soil  or  bring  an  action  of  ejectment;  but  he  neverthe- 
less has  a  remedy  for  any  special  injury  to  his  rights  by  the  author- 
ized acts  of  others.^^  THus,  merely  stringing  of  wires  before  one's 
property  is  not  an  injury  entitling  him  to  preliminary  in j unction,^ ^ 
or  he  cannot  complain  if  the  wires  are  in  a  conduit  laid  under  the 
side\valk.^*^  But  should  his  easement  to  travel  be  obstructed  or  in- 
terfered with,  he  might  demand  compensation  of  the  company,  not- 
withstanding the  fact  that  the  fee  is  in  the  public.  Thus,  the  ease- 
ment of  access  embraces  the  use  of  an  upper-story  door  for  receiving 
merchandise.^"  If  the  multiplicity  of  wires  obstnicts  the  free  pas- 
sage of  air  or  light,  or  if  they  materially  obstruct  the  fire  depart- 
ment in  putting  out  fire,  whereby  the  property-owner  is  damaged,  he 
may  exact  of  such  company  compensation  for  the  uses  of  the  streets 
for  its  posts  and  wires. 

"Chesapeake,  etc.,  Tel.  Co.  v.  Mack-  »•=  Coburn  v.  New  Tel.   Co.,   156  Iiul. 

enzie,  74  Md.  3G,  28  Am.  St.  Eep.  219.  90,  59  X.  E.  324,  50  L.  R.  A.  671. 

21  Atl.  691.  «^Hays  v.   Columbiana    County    Tel. 

"Roake  v.   American  Tel.,  etc.,  Co.,  Co.,  12  Ohio  Cir.  Dec.  167.  21  Ohio  Cir. 

41  X.  J.  Eq..  35,  2  Atl.  618.  Ct.  480. 


112  TELEGRAPH   AND   TELEPHONE  COMPANIES,  [^    11" 

§  117.    When  title  or  fee  is  in  third  party. 

We  now  come  to  the  third  and  last  division  of  this  subject,  that  is, 
should  the  abutting  owner,  be  compensated  by  a  telephone  company 
which  constructs  its  line  of  wires  upon  the  street  adjacent  to  his 
property,  when  the  title  is  in  some  third  party  ?  ^^  There  may  be 
instances  where  neither  the  abutting  owner  nor  the  public  has  ac- 
quired the  fee  to  the  land  on  which  the  easement  is  laid  out,  but  that 
it  still  remains  in  the  original  owner  of  the  property  or  his  heirs.  Un- 
(ier  such  circumstances,  who,  if  any  one,  is  entitled  to  compensation  ? 
This  question,  as  far  as  it  has  come  to  our  knowledge,  has  never  been 
directly  adjudicated.'^'^  In  such  instances,  there  may  be  two  enti- 
tled to  compensation ;  the  original  owner,  and  the  abutter.  The 
former  for  the  additional  burden  or  injury  to  the  soil,  and  the  latter 
for  the  interference  of  his  access  to  his  property.  The  original  o^mer 
or  his  heirs  would  have  the  same  right  to  exact  of  these  companies 
additional  compensation  for  the  use  of  the  public  easement  for  the 
construction  of  their  lines,  as  the  abutter  would  have  in  case 
the  fee  Avas  in  the  latter.  His  gTounds  for  same,  however,  would 
be  the  fact  that  the  use  was  an  additional  burden,  and  not  on 
the  gTound  that  it  was  an  interference  with  the  access  to  his  prop- 
erty. The  abutter  would  have  the  same  ground  upon  which  to  base 
his  right  for  exacting  compensation  for  the  use  of  the  public  ease- 
ment by  a  telephone  company,  as  he  would  have  in  case  the  fee  was 
in  the  public.  In  order  to  obtain  compensation  from  these 
companies,  under  such  circumstances,  it  must  be  shown  that 
access  to  his  property  has  been  interfered  with  and  not  be- 
cause there  has  been  an  injury  inflicted  upon  the  soil. 
Hence,  if  an  appropriation    of    the    street    by    one    of    these    com- 

<«lt  will  be  settled  that  the  owner  ble  as  ihe  property  in  the  lots  thera- 
of  lots  "have  a  peculiar  interest  in  the  selves."  8  Dana  294 ;  Haynes  v.  Thorn- 
adjacent  street  which  neither  the  local  as,  7  Ind.  38;  Rowen  v.  Portland,  8  B. 
nor  general  public  can  pretend  to  claim  ^lonr.  232 :  Le  Clercq  v.  Gallipolis,  7 
—a  private  right  in  the  nature  of  an  Ohio  217;  Cincinnati  v.  ^Vhite,  6  Peters 
incorporeal  hereditament  legally  at-  431,  cited  in  Elizabeth,  etc.,  R.  Co.  v. 
tached  to  their  contiguous  grounds— an  Combs,  10  Bush  382,  19  Am.  Rep.  67. 
incidental  title  to  certain  facilities  and  «•  Chesapeake,  etc..  Tel.  Co.  v.  Mack- 
franchises  assured  to  them  by  contract  enzie,  74  Md.  80,  28  Am.  St.  Rep.  219, 
and  by  law,"  and  which  are  as  inviola-  21  Atl.  5.")9. 


<^    119]  COXSTRUCTION  AND  MAINTENANCE.  113 

panics,  even  under  legislative  and  municipal  sanction,  unreasonably 
abridges  the  right  to  use  the  streets  as  a  means  of  ingress  and  egress, 
or  otherwise,  and  he  is  thereby  deprived  of  his  right  without  compen- 
sation, an  action  will  lie  against  such  companies,  guilty  of  usurping 
such  unreasonable  and  exclusive  use,  for  the  recovery  of  such  imme- 
diate and  direct  damages  as  he  may  have  suffered.'" 

§  118.     Effect  of  legislative  grant — not  a  nuisance. 

Although  the  posts  and  wires  composing  a  telephone  line  are  an 
additional  burden  on  the  street,  for  which  compensation  must  be  made 
to  the  owner  of  the  abutting  property,  yet  concurrent  legislative  and 
municipal  authority,  granted  to  a  telephone  company  to  erect  its  poles 
and  suspend  its  wires  in  and  over  the  streets  of  a  city,  will  protect  it 
from  being  treated  as  a  trespasser  and  its  works  from  being  declared 
a  nuisance,  if  they  are  so  constructed  as  not  to  obstruct  or  interfere 
with  the  use  of  the  streets  by  the  public  or  the  o^vner's  right  of  in- 
gi'ces  or  egrecs  to  and  from  his  abutting  property.'^ ^ 

§  119.     Amount  of  compensation  to  abutter. 

It  being  conceded  that  the  construction  of  a  telephone  line  upon 
a  street  constitutes  a  new  use  thereof,  and  thereby  and  thereon  im- 
posing an  additional  burden ;  and  it  following  that  the  abutting  lot- 
owner  may  be  entitled  to  an  additional  compensation  for  such  use; 
and  for  damages  for  any  material  injury  to  the  easement  or  access 
and  passage  over  the  streets,  the  question  vs^hich  necessarily  follows 
is.  How  much  should  he  recover  from  these  companies  for  the  use 
of  the  easement,  and  how  much  should  he  be  allowed  as  damages  for 
injuries  to  his  right  in  same  ?  "The  true  measure  of  damages 
is  not  what  a  particular  individual  would  be  willing  to 

■"Elizabeth,  etc.,  E.  Co.  v.  Combs,  10  A.  77on,   19  Am.  St.  Eep.   008;   Postal 

Bush  382.  19  Am.  Rep.  67;  Schurmeir  Tol.  Cable  Co.  v.  Norfolk,  etc.,  R.  Co., 

V.  St.  Paul,  etc.,  R.  Co.,  10  Minn.  82,  88  Va.  920,  14  S.  E.  820;  Eels  v.  Amer- 

88  Am.  l>c.  50;  Cooley  Const.  Limit.,  ican  Tel.,  etc.,  Co.,  65  Hun     (N.  Y.) 

556.  516,  affirmed  143  N.  Y.  133;  Southern 

•Mvostor  V.   West.    U.   Tel.    Co.,    108  Bell  Tel.  Co.  v.  Francis,  109  Ala.  224, 

Fed.    926;    \Yest.   V.   Tel.   Co.  v.   Wil-  19  So.  1,  55  Am.  St.  Eep.  930,  31   L. 

liams,  86  Va.  696,  11  S.  E.  109,  6  L.  R  E.  A.   193 
T.  &  T.— 8 


114:  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    110 

charge  for  having  the  poles  put  up  or  remain,  nor  the  amount  some 
other  person  might  consider  the  rental  value  w&s  depreciated  for 
the  purposes  of  his  business ;  but  where  the  land  of  plaintiff  is  not 
taken  nor  his  soil  actually  invaded,  the  measure  of  damages,  as  ad- 
judged in  many  cases  is,  either:  (1)  The  extent  to  which  the  rental 
or  usable  value  of  the  particular  property  has  been  diminished  by 
the  trespass  or  injury  complained  off^  or,  (2)  the  difference  in  the 
value  of  the  property  before  the  construction  of  the  poles  and  its 
value  afterwards,  if  the  depreciation  in  value  has  been  caused  by  the 
erection  and  maintenance  of  the  poles.'^^  Where  there  is  nothing  to 
show  that  any  special  damage  has  been  suffered,  the  principle  seems 
to  be  established  by  many  respectable  authorities,  that  the  abutter  is 
entitled  to  recover  such  compensation  as  the  use  of  the  ground  was 
worth  during  the  time  and  for  the  purpose  it  was  occupiedJ^ 

§  120.     Damages  to  abutting  owners — amount. 

The  fact  that  the  abutting  lotowner  is  compensated  for  the  new 
use  of  the  street  for  telephone  lines  will  not  prevent  him  from  re- 
covering damages  for  any  material  injury  to  the  easement  of  access 
and  passage  over  the  street.  As,  for  instance,  if  the  company  should 
erect  its  poles  and  string  its  wires  in  the  premises  of  the  abutter  so 
as  to  interfere  with  the  free  access  to  his  property  or  obstruct  the 
air  and  light  to  same,  he  would  be  entitled  to  damages  for  such  in- 
jury, notwithstanding  the  fact  that  he  has  already  been  compensated 
for  the  additional  servitude  of  the  street.  And  he  may  be  allowed 
punitory  damages  when  there  is  an  element  of  wanton  or  malicious 
motive,  or  such  reckless  disregard  of  his  rights  by  the  company,  in 
the  commission  of  the  injury — and  all  repetitions  thereof — as  he 
would  be  entitled  to.'^^    If  such  are  not  the  facts  in  the  case,  he  would 

«  Baltimore,  etc.,  R.  Co.  v.  Boyd,  67  --  Ashby  v.  White,  2  Ld.  Rayne  955 ; 

Md.   32,   10  Atl.   815,   1   Am.   St.  Rep.  Millor  v.  Spaterman,  1  Saund.,  note  2, 

362;  Wood  v.  State,  66  Md.  61,  5  Atl.  p.  346a;  Taylor  v.  Hcrniker,  12  Ad.  & 

476.  K.  488;  Dixon  v.  Clow,  24  Wend.  188; 

"  Shepherd     v.     Baltimore,  etc.,     R.  Baltimore,  etc.,  R.  Co.  v.  Boyd,  67  Md. 

Co.,  130  U.  S.  426,  9  S.  Ct.  Rep.  598.  32,   10  Atl.   815,   1   Am.   St.  Rep.   362 : 

'*  Baltimore,  etc.,  R.  Co.  v.  Boyd,  67  Woods  v.  State,  66  Md.  61,  5  Atl.  476. 
Md.   32,   1   Am.   St.  Rep.   362,   10  Atl. 
815. 


§  121]  COXSTRUCTIOX  AND  MAINTENANCE.  115 

only  be  entitled  to  nominal  damages ;  and,  the  measure  of  which, 
where  punitory  or  exemplary  damages  are  not  claimed,  is  the  differ- 
ence in  the  value  of  the  property  before  the  construction  of  the  lines 
and  its  value  afterwards,  if  the  depreciation  in  value  has  been  caused 
by  the  erection  of  the  poles.'''  It  is  not  necessary  that  the  abutting 
owner  should  give  affirmative  proof  of  his  having  sustained  any  par- 
ticular amount  of  damages  ;^^  for  any  unauthorized  entry  upon  an- 
other's land  is  a  trespass,  and  whether  the  owner  suffers  substantial 
injury  or  not,  he  at  least  sustains  a  legal  injury,  which  entitles  him 
to  some  damages,  though  they  may  be  very  small  under  some  cir- 
cumstances.'^^ 

§  121.    Remedies  of  adjoining  lot-owner. 

When  a  telephone  company  constructs  its  lines  albng  and  upon  a 
street  without  first  having  obtained  the  consent  of  the  legislative  au- 
thority, the  occupation  thereof  becomes  unlawful  and  amounts  to  a 
public  nuisance,  and  the  abutter  may  enjoin  the  company  or  bring 
an  action  of  damages  against  it;  but  in  determining  the  nature  of 
the  case  to  be  brought,  the  circumstances  in  the  particular  cases  must 
first  be  considered.  The  remedy  may  be  by  an  action  of  ejectment, 
an  injunction,  or  by  an  action  for  damages.  If  the  fee  to  the  land 
on  which  the  easement  is  laid  out  is  in  the  abutting  owner,  and  the 
company  constructs  a  line  of  wires  thereon  without  his  consent  or 
without  compensating  him  therefor,  he  may  have  the  same  removed, 
in  case  they  have  not  progressed  too  far  in  the  construction  of  same, 
by  an  action  of  ejectment."^     The  state  only  acquires  a  right  of  pas- 

'°  Shepherd  V.  Baltimore,  etc.,  R.  Co.,  Am.   Dec.    265;    Atwood   v.    Fricat.    17 

130  U.  S.  426,  9  S.  Ct.  Rep.  598;  Chesa-  Cal.  37,  76  Am.  Dec.  567. 
peake,   etc.,    R.    Co.    v.    Mackenzie,    74  '«24  Wend.  188;  Ashley  v.  White,  2 

Md.  36,  28  Am.  St.  Rep.  227,  21  Atl.  Ld.  Rayme  955:   Miller  v.  Spaterman. 

690;  Erie  Tel.  Co.  v.  Kennedy,  80  Tex.  1    Saund.,   note   2,   p.   346a;    Taylor  v. 

71,  see  Postal  Tel.  Cable  Co.  v.  Bruen,  Henriker,   12  Ad.   &  E.  488:   Dixon  v. 

39  X.  Y.  Supp.  220.  where  the  erection  Clow,   24   Wend.    188;    Baltimore,  etc.. 

of  poles  one     hundred  and  fifty     feet  R.  Co.  v.  Boyd,  1  Am.  St.  Rep.  365. 
apart  -was  held  to  give  a  right  to  nomi-  '"  Postal  Cable  Tel.  Co.  v.  Eaton,  170 

nal  damages.  111.  513.  40  X.  E.  365,  62  Am.  St.  Rep. 

■^McConnel  v.  Kibbs.  33  111.   175,  85  390,  39  L.  R.  A.  722;  Board  of  Trade 

Tel.    Co.   V.    Barnett,    107    111.   507,   47 


116  TELEGRAPH  AND  TELEPHONE    COMPANIES,  [§    121 

sage  to  the  easement;  and  all  tlic  other  rights  and  interest  to  the  soil, 
except  such  easement,  remain  in  the  abutting  owner.  Any  use  to 
which  the  easement  might  be  placed  other  than  such  as  would  fall 
under  the  right  of  passage,  w^ould  be  an  additional  servitude  to  the 
land  for  w-hich  additional  compensation  would  have  to  be  made,  and 
it  is  pretty  generally  held  that  a  telephone  line  upon  the  easement 
is  an  additional  burden  and  one  not  contemplated  at  the  time  the 
grant  was  given ;  so  this  additional  burden,  as  any  other  trespass, 
could  be  removed  by  an  action  of  ejectment,  ''I  see  no  ground,"  as 
was  ably  observed  by  Lord  Mansfield,  ''why  the  owner  of  the  soil  may 
not  bring  ejectment  as  well  as  trespass,  .  .  ,  'Tis  true,  he  must 
recover  the  land  subject  to  the  way;  but  surely  he  ought  to  have  i 
special  remedy  to  recover  the  land  itself,  notwithstanding  its  being 
subject  to  an  easement  upon  it."  ^^  As  the  public  only  acquires  an 
easement  of  travel  over  the  land,  the  abutting  owner  thereof  has  the 
same  remedies  to  remove  all  intruders,  trespassers  and  obstructions 
therefrom  as  he  would  have  should  they  be  on  his  private  property. 
When  any  of  these  injuries  are  on  any  of  his  private  property  with- 
out his  consent,  he  might  have  the  same  removed  by  ejectment ;  so  the 
same  remedy  could  be  exercised  when  they  had  encroached  upon  his 
other  property  upon  which  an  easement  had  been  laid  out,  and  this, 
too,  notwithstanding  the  fact  that  the  same  was  granted  before  he  ac- 
quired the  title  to  the  abutting  property, ^^  It  has  been  held  that  an 
action  of  injunction  will  lie,^^  but  in  either  instance,  the  abutting 
owner  might  be  estopped  to  prosecute  such  actions  where  he  had  ap- 

Am.   Rep.   453;     West.    U.    Tel.   Co.  v.  Co.  v.  Rodel,  87  Ind.  128,  4G  Am.  Rep. 

Williams,  86  Va.  696,  19  Am.  St.  Rep.  164.     See,   also,  Robert  v.   Sadler,   104 

008,    11    S.   E.    109,   6  t.   R.   A.      77n.  X.  Y.  229,  58  Am.  Rep.  498,  and  notes 

Purchaser  succeeds  to  right  of  vendor?  thereunder. 

Postal  Tel.  Cable  Co.  v.  Eaton,  supra.  "Postal  Tel.  Cable  Co.  v.  Eaton,  170 

•*  Goodtitle  v.  Alker,   1     Burr.     133,  111.  573,  62  Am.  St.  Rep.  390,  49  N.  E. 

Cooper  V.  Smith,  9  S.  &  R.  26,  11  Am.  365,  39  L.  R.  A.  722. 
Dec.  G58;  Alden  v.  Murdock,  13  Mass.  "^Injunction  has  been  held  to  be  the 

256;  Bissell  v.  N.  Y.  C.  R.  Co.,  23  N.  proper  remedy  in  such   a  case.     Gray 

Y.    61;    Carpenter   v.    Oswego,   etc.,   R.  v.  N.  Y.  St.  Tel.  Co.,  41  Misc.   (N.  Y.) 

Co.,  21  X.  Y.  655;  Jersey  City  v.  Fitz-  108.    See  Donovan  v.  Allert,  11  N.  Dak. 

Patrick,  30  N.  J.  Eq.  97;  Perry  v.  New  289,   91    X.   W.   441,   95  Am.   St.   Rep. 

Orleans,etc.,R.  Co.,  55Ala.  413,   28   Am.  720,  58  L.  R.  A.  775;   Denver  v.  U.  S. 

Rep.  740,  all  cited  in  Terre  Haute,  etc.,  Tel.  Co.,  10  Ohio  Dec.  273. 


§   123]  coi\sti;l(  rio.x  axd  .\i atxtenaxce.  -       117 

parently  acquiesced  in  the  construction  of  the  lines.^^  The  company 
M-ou'ld  be  allowed  an  opportunity  to  perfect  its  rifiht.s  liv  instituting 
condemnation  proceedings. 

§  122.     Same  continued — ignorance  of  rights. 

The  same  state  of  facts  will  exist  notwithstanding-  the  fact  that 
the  company  erects  its  poles  and  stretches  wires  along  the  streets  with 
the  belief  that  it  had  the  legal  right  so  to  do,  but  without  obtaining 
the  consent  of  the  abutting  owner  or  seeking  to  acquire  his  rights  by 
negotiation  or  condemnation  proceedings.**^  Ignorantia  juris  nemi- 
nem  excusat,  is  an  old  maxim  and  is  founded  on  the  presumption 
that  every  one  who  is  competent  to  act  for  himself  is  boiuid  to  know 
the  laM'.^^  It  is  presumed  that  every  company  has  investigated  the 
law  applicable  to  its  right  in  constructing  a  line  of  wires  upon  the 
easement,  and  if  it  has  not  and  afterwards  learns  that  it  has  no 
right  to  make  such  construetidn.  tlic  conqiany  will  be  held  liable  just 
the  same. 

§  123.     Same  continued — action  for  damages. 

Another  remedy  which  an  abutting  owner  may  maintain  against 
a  company  for  constructing,  Avithout  his  consent,  a  line  of  wires  upon 
the  easement,  is  by  an  action  of  damages.  This  method  is  generally 
exercised  when  the  abutter's  easement  of  access  is  interfered  with. 
In  these  actions  it  is  no  defense  that  the  company  has  obtained  legis- 
lative authority,  for  it  is  generally  in  such  cases  that  these  actions 
are  brought.  Damages  would  be  the  proper  action  where  the  company 
has  been  in  operation  for  some  time ;  as  the  abutting  owner  would  be 
estopped  to  enjoin  where  the  company  had  gone  to  considerable  ex- 
pense in  erecting  the  line,  and  the  abutter  has  apparently  acquiesce'] 
in  the  erection  of  same.^^     There  may  be  exceptions  to  the  rule  where 

^  Daflingcr  \.  Pittsburfr,  etc.,  Ti>l.  Co.,  «  Storys  Eq.  Juris.,  §  llfi. 

31   Pitts.  Leg.   J.   r.   S.    (Pa.)    37,   14  '"Abendioth   v.   Manhatton     R.    Co., 

York   Les.   Rec.    (Pa.)    4(>:    Abcnrlroth  122  X.  Y.   1,   19  Am.  St.  Rep.  461.   11 

V.  Manhatton  R.  Co..   122  N.  Y.   1,   10  L.  H.  A.  (i.'Un ;  Brownson  v.  Albion  Tel. 

Am.  St.  Rep.  401,  1  L.  R.  A.  (]34n.  Co..    !)3    .V.    W.   201.   60   L.   R.   A.   429: 

"Abendroth  V.Manhattan  R.  Co.,  122  :sraN\voll   v.   Central   Dist.   Tel.   Co..   5) 

N.  Y.  1.  19  Am.  St.  Rep.  MW .  11  L.  R.  W.  Va.    121,  41   S.    K.    12.'):   Omaha   r. 

A.  634n.  Flood,  57  Neb.  124.  77  X.  \V.  379. 


lis        ,  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§>    123 

the  maintaining  of  the  line  would  become  too  obnoxious  to  the  com- 
forts of  life  or  the  enjoyment  of  his  rights.  For  instance,  cases  may 
happen  where  the  wires  become  so  numerous  as  that  the  bulk  of  them 
obstruct  the  abutting  owner's  free  access  to  air  and  light.  In  such 
cases  he  could  recover  damages  for  such  injuiy  and  also  enjoin  the 
company  from  using  the  easement  any  longer  for  such  use.  Repeat- 
ing again  the  law — the  construction  of  a  telephone  line  upon  an  ease- 
ment without  legislative  consent  becomes  a  public  nuisance  and  may 
be  abated  like  any  other  nuisance ;  yet  if  the  company  has  expended 
much  capital  in  its  construction  and  is  nearing  completion,  the  abut- 
ter would  be  estopped  to  enjoin  further  work  on  same,  on  the  ground 
of  apparent  acquiescense,  but  this  would  not  be  any  bar  to  his  recov- 
ing  compensation  for  the  additional  use  to  which  the  easement  was 
put,  and  also  damages  for  any  injury  to  his  soil — such  as  the  digging 
of  holes  for  posts,  trimming  trees,^^  cutting  up  hedges  and  throwing 
down  fences,  and  also  for  any  obstruction  to  the  easement  of  access 
to  his  property.  Should  the  use  to  which  the  company  puts  the  ease- 
ment be  such  as  would  materially,  permanently  and  continuously  in- 
jure the  premises  and  his  life  and  home  comforts,  the  proper  remedy 
would  be  by  an  action  of  injunction.^* 

§  124.     Further  considered — unauthorized  use  of  street — may    be 
enjoined. 

Where  there  is  an  unauthorized  use  of  a  street  either  by  the  com- 
pany not  complying  with  the  ordinance,  or  by  utter  lack  of  authority 
to  use  same,  it  may  be  enjoined  from  carrying  on  further  business.*'^ 
The  legislature  or  the  municipality  may  require  the  company  to  con- 
struct its  poles  and  wires  in  a  certain  prescribed  manner,  and  this  it 

"  Dailcy  V.  State,  51  Ohio  St.  348,  37  «'^  Mut.  U.  Tel.  Co.  v.  Chicago,  16  Fed. 

N.  E.  710,  46  Am.  St.  Rep.  578,  24  L.  309;   People  v.  Metropolitan  Tel.,  etc., 

R.  A.  724.  Co.,    31    Hun    (N.   Y.)    596;    Utica   v. 

'^Hay    V.    Columbiana    County    Tel.  Utica  Tel.  Co.,  24  N.  Y.  App.  Div.  361; 

Co.,  12  Ohio  Cir.  Dec.  167,  21  Ohio  Cir.  Norshfield  v.   Wisconsin  Tel.   Co.,    102 

Ct.  480;  Broome  v.  N.  Y.,  etc.,  Tel.  Co.,  Wis.    604,   78    N.    W.    735.      See,   also, 

42  N.  J.  Eq.  141,  7  Atl.  851;   Russ  v.  Reg.  v.   United  Kingdom  Electric  Tel. 

Penn.  Tel.  Co.,   15  Pa.  Co.  Ct.,  226,  3  Co.,  2  B.  &  S.  648,  note  110  E.  C.  L. 

Pa.  Dist.  654.  048,  note  31  L.  J.  M.  C.  166. 


§    125]  CONSTEUCTION  AND  MAINTEXANCE.  IIU 

must  do  or  be  subject  to  an  injunction.  As  for  instance,  it  is  often  re- 
quired of  these  companies  by  ordinances,  that  the  poles  must  be  of 
such  a  size  and  a  certain  distance  apart,  or  that  the  wires  must  be  of 
a  certain  height.^"  In  some  states  there  have  been  statutes  passed 
which  require  all  telephone  companies  doing  business  in  cities  above 
a  certain  population  to  place  their  wires  under  the  surface;  on  fail- 
ure to  perform  any  of  these  requirements  an  injunction  suit  may  be 
maintained  either  by  the  city"^  or  by  an  abutting  lot  owner  who  is 
affected  by  the  unauthorized  use,''-  but  not  at  the  suit  of  a  rival  com- 
pany.^^  And  the  rule  prevails  whether  the  occupation  of  a  street 
was  never  authorized  or  has  ceased  to  be  lawful  because  of  the  valid 
withdrawal  of  an  original  authority.^'* 

§  125.    Liabilities  for  cutting  trees  overhanging  sidewalks. 

A  telephone  company  is  liable  for  trespassing  upon  the  premises 
of  an  abutting  owner  for  the  purpose  of  cutting  or  trimming  trees 
overhanging  the  sidewalk.  It  very  often  becomes  necessary  in  the 
construction  of  telephone  lines  in  cities  to  cut  and  trim  valuable  and 
ornamental  trees  overhanging  the  sidewalk,  in  order  to  suspend  the 
wires  from  post  to  post ;  in  doing  so,  the  owner  thereof  usually  raises 
serious  objections.  The  companies,  then,  are  face  to  face  with  this 
question  of  right  and  power.  They  are  generally  given  the  power, 
-along  with  their  license,  to  cut  and  trim  such  overhanging  trees  as 
may  be  an  obstruction  to  the  erection  of  their  wires,  but  when  this 
grant  is  given  them,  it  is  not  understood  that  the  owners  are  to  be 
deprived  of  their  property  without  the  company  first  making  or  tend- 
ering them  due  compensation  for  their  property;  or  otherwise  his 

»«]f    the    company   be   authorized   to  41    S.    E.    125.      Soo.   also,   Donovan   v. 

use  poles  of  such  size  and  height  as  is  Allcrt,   UN.   Dak.  289,   91   N.  W.  41. 

reasonably  necessary,  and  uses  poles  of  95  Am.  St.  Rep.  720,  58  L.  R.  A.  775. 

greater   size   or   height,    the    authority  »*  Chicago  Tel.   Co.   v.   Northwestern 

granted  to  it  is  no  protection.     People  Tel.  Co.,  199  111.  324,  65  N.  E.  329,  af- 

V.  :Metropolitan  Tel.,  etc.,  Co.,  31  Hun  firming  100  111.  App.  57. 

(N.  Y.)  590.  '>*]\rut.  U.  Tel.  Co.  v.  Chicago,  16  Fed. 

"See  cases   in  note  90  for  reference.  309;  American  Rapid  Tel.  Co.  v.  Hess, 

»»  Irwin  V.  Great  Southern  Tel.   Co..  125   N.    \\   041.   21   Am.   St.   Rep.   764, 

37    La.    Ann.    03;    Maxwell    v.    Central  13  L.  R.  A.  454n. 

Dist..    etc..    T.l.    Co..    .il    \V.    Va.    121. 


120  TELEGRAPH  AA'D  TELEPHONE   COMPANIES.  [§    12'> 

property  would  "be  used  for  public  purposes  \vithout  compensation, 
which  would  be  in  violation  of  the  constitution."''  These  companies 
must  pay  to  the  owners  of  the  trees  such  damages  as  they  would  be 
entitled  to.  While  the  gravamen  of  an  action,  brought  for  the  pur- 
]iose  of  recovering  damages  for  the  cutting  of  overhanging  trees  on 
the  sidewallv,  is  the  trespass  upon  the  premises  of  the  abutting  o^vner, 
this  could,  however,  be  avoided  by  providing  means — as  by  step  lad- 
ders or  other  means — to  reach  the  trees  or  limbs  from  the  street,^"  yet 
then  they  would  nevertheless  be  liable  if  the  trees  were  injured  to 
any  extent.  For  instance,  if  it  were  necessary  to  cut  the  trees  in 
order  to  lay  the  telephone  line,  this  would  not  warrant  cutting  them 
so  as  to  leave  in  the  foilage  an  open  space  from  twenty-five  to  forty 
feet  in  circumference  for  the  mere  purpose  of  passing  through  it  an 
almost  imperceptible  wire.^"  This,  however,  would  not  be  the  case 
if  the  trees  had  been  declared  a  nuisance  and  the  owners  thereof  had 
been  authorized  to  move  same.  A  municipality  may  declare  them  a 
nuisance  Avhen  they  obstruct  travel  along  the  streets  or  when  the 
limbs  prevent  the  sun  from  drying  the  sidewalks  and  thereby  creating 
constant  dampness  and  causing  decay ;  but  a  telephone  company  could 
not  abate  the  nuisance  on  its  own  accord, 

§  126.    Same  continued — punitory  damages. 

The  company  may  commit  the  trespass  in  such  a  way  as  would  en- 
title the  lotowner  to  punitory  or  exemplary  damages,  as  in  the  case 
where  the  trespass  was  wanton  and  malicious,  the  injured  party 
would  be  entitled  to  recover  both  nominal  and  vindictive  damages. 
This  was  so  held  where  a  telephone  company  had  authority  from 
the  city  to  construct  a  line  of  wires  upon  the  streets  and  in  making 
such  construction  attempted  to  cut  and  trim  limbs  on  ornamental 
trees  overhanging  the  sidewalk.  The  owners  of  these  trees  objected 
to  their  being  trimmed  in  any  manner,  but  in  order  to  accomplish 
this  work  the  employee  stole  ^  march  on  the  lotowner  by  going  to  the 
premises  late  at  night  and  then  entering  the  premises  and  doing  the 

*=  Board  of  Trade  Tel.  Co.  v.  Barnett,  "' Tessat  v.  Great  Southern  Tel.,  etc.. 

107  111.  507,  47  Am.  Rep.  4.53.  Co.,  39  La.  Ann.   nOCJ,  4  Am.   St.  Bep. 

*•=  Memphis  Bell  Tel.  Co.  v.  Ilnnt,  10  248,  3  So.  2G1. 
Lea.  456,  57  Am.  Rep.  237. 


§  128]  COXSTKUCTIOX  AND  MAINTENANX'E.  121 

work.^^  In  another  case  the  employees  of  the  company  waited  until 
the  owner  of  the  trees,  who  had  objected  to  the  cutting  of  his  trees, 
had  gone  off  on  a  visit  before  the  trimming  was  done.*'''^  The  court 
granted  damages  to  these  injured  parties  for  malicious  and  willful 
trespass  of  the  company.  It  makes  no  difference  if  the  company's 
agent  in  charge  of  the  construction  was  absent  at  the  time  the  trespass 
was  committed,  the  company  will  still  he  liable.^'^'^ 

§  127.     Willful  intent — question  for  jury. 

Punitive  damages  are  imposed  on  a  corporation  as  a  means  of  pun- 
ishment for  its  wrongful  acts,  and  in  order  for  a  corporation  to  be 
guilty  of  a  criminal  wrong,  it  must  have  had  an  intent  to  commit  such 
wrong.  Applying  the  rule  to  the  present  discussion,  if  the  employees 
of  a  telegTaph  or  telephone  company  in  good  faith  honestly  thought 
from  the  circumstances  that  they  had  the  right  to  cut  certain  trees  on 
the  premises  of  another,  they  cannot,  within  the  meaning  of  the  law. 
to  be  held  to  be  guilty  of  a  crime,  although  they  had  no  right  or  lawful 
authority  to  cut  such  trees ;  however,  if  they  acted  heedlessly,  reck- 
lessly and  carelessly,  without  honestly  believing  that  they  had  the 
right  to  do  so  they  or  rather  the  company  for  which  they  are  working, 
will  be  liable  iA  punitory  damag-es,  yet  it  is  a  question  of  fact  to  be 
decided  by  a  jury  as  to  whether  or  not  they  acted  in  such  a  way  as  to 
make  the  company  liable  for  such  damages.-"'^ 

§  128.     Trees  on  the  sidewalk. 

There  seems  to  be  a  difference  in  the  effect  in  the  trimming  or 
cutting  of  trees  which  are  growing  in  front  of  the  premises  of  the 
abutter  on  the  sidewalk,  or  between  the  sidewallc  and  the  street,  and 
those  growing  on  the  premises  of  the  abutter  but  hanging  over  the 
sidewalk.  The  sidewalk  and  streets  are  for  the  benefit  of  public 
travel,  and  all  obstructions  thereon  may  be  declared  a  nuisance  and 
removed  by  abatement.  In  most  cities  and  to\^Tls,  there  may  be  seen 
trees  growing  upon  or  on  the  outer  edge  of  the  sidewalk — the  same 
having  been  planted  either  by  the  city  or  the  abutter  or  vendor,  and 

'«  Memphis  Bell  Tel.  Co.  v.  Hunt.  10  ""Clay  v.  Postal  Tel.  Co.,  U  So.  15S. 

Lea.  456,  57  Am.  Rep.  237.  ""  Dailet    v.    State.    57  Ohio  St.  34S. 

"^Tessat  v.  Great  Southern,,  etc.,  Tel.  40  Am.  St.  Rep.  578,  24  L.  R.  A.  724. 

Co.,  39  La.  Ann.  OnO,  3  So.  261,  4  Am.  49  X.  E.  79. 
St.  Rep.  248. 


122  TELEGRAPH   AXD  TELEPHONE   COMPAKIES.  [<^    128 

for  the  purpose  of  shade,  ornament  and  health.     The  question  may 
be  asked :  What  interest  has  the  abutter  in  these  trees  ?    His  interest 
in  the  trees,  whether  they  were  planted  by  him  on  the  sidewalk,  or 
acquired  by  devolution  of  title  to  the  adjacent  property,  is  a  qualified 
and  limited  ownership,  subordinate  to  the  public  right  to  safe  and 
convenient  passage,  and  to  the  rights,  powers  and  duties  of  the  gov- 
erning municipal  body  in  the  protection,  promotion  and  establishing 
of  every  public  use  in  and  upon  the  streets  in  a  city.^^-    A  question 
which  might  necessarily  f ollow'   is  this :  Has  the  city  such  control 
over  the  streets  as  would  enable  it  to  grant  to  a  telephone  company 
the  power  to  cut  or  trim  such  trees  without  compensating  the  abut- 
ter ?    If  the  fee  to  the  streets  is  in  the  city,  it  could  grant  this  power, 
but  should  the  fee  be  in  the  abutter,  the  city  would  have  no  authority, 
unless  it  were  necessary  and  beneficial  to  the  latter  to  grant  such  a 
power.     The  abutter  only  grants  to  the  public  the  right  of  easement 
and  reserves  to  himself  all  other  interest  in  the  soil.     So,  it  follows, 
that  he  is  entitled  to  all  that  grows  upon  the  easement  such  as  trees, 
and  grasses,  to  the  center  of  the  way  and  also  to  all  minerals  and  other 
substances  beneath  the  soil;  yet  in  making  the  grant  to  the  pulic  it 
was  understood  that  the  easement  would  necessarily  have  to  be  put  in 
and  maintained  in  a  passable  condition.      So,  also,  any  obstruction 
which    would    interfere    with    travel    or    the    convenience     thereto 
might  be  abated ;    and    w'here   it    is    necessai*y    to    remove    or    trim 
these  trees  for  public  travel  or  for  such  secondary  uses  to  w^hich  these 
streets  might  be  put,  the  same  may  be  done  without  compensating 
the  abutting  owner.     It  is  presumed  that  he  was  amply  compensated 
for  these  at  the  time  the  grant  to  the  street  was  acquired.     While 
the    telephone    company    would    have    to     compensate     these     lot- 
owners  for  cutting  and  trimming  these  trees,  yet  if  in  connection  with 
these  companies  there  is  another  contrivance,  attached  to  the  poles 
of  the  company— as  a  telegraph  fire-alarm   wire — and    the    same    is 
specially  for  the  benefit  of  the  city,  the  owner  Avould  not  be  entitled 
to  compensation  for  the  injury  to  his  said  trees,  caused  by  the  con- 
struction of  this  fire-alarm  wire,^°"  for  this  is  a  secondary  use  to 
which  the  streets  may  be  put  and  one  contemplated  at  the  time  the 
grant  was  made. 

«»=' Baker  V.  Gows  Normal,  81  111.  108.  ">»  Southern    Bell    Tel.,    etc.,    Co.    v. 

Francis,  10  So.  1. 


CHAPTER  VIII. 

OVER  PRIVATE  PROPERTY. 

§  129.  By  consent. 

130.  By  condemnation  proceedings. 

131.  General  rule — conditions  precedent. 

132.  Same   continued — petition — contents. 

133.  Same  continued — name  of  petitioners. 

134.  Same  continued — name  of  land-owners — their  residence  and 

interest  in  lands — several  tracts  or  interests. 

135.  Same  continued — description  of  route. 

136.  Same  continued — description  of  poles. 

137.  Same  continued — notice — appointment  of  commissioners. 

138.  Same  continued — sworn  to  by  officers. 

139.  Same  continued — failure  to  acquire  land  by  agreement  with 

land-owner. 

140.  The  interest  acquired. 

141.  Measure  of  damages. 

§  129.     By  consent. 

Where  a  telephone  company  occupies  the  private  property  of  an 
individual  for  the  construction  of  a  line  of  wires,  there  is  no  question 
but  that  the  landowner  should  he  compensated  for  the  use  of  his 
land.^     There  are  two  ways  by  which  the  company  may  legally  ac- 

'  Dailey  v.  State,  51  Ohio  St.  348,  37  St.  Rep.  358.  This  question  is  decided 
N.  E.  810,  24  L.  R.  A.  724,  49  Am.  St.  in  American  Telephone,  etc.,  Co.  v. 
Rep.  578;  West.  U.  Tel.  Co.  v.  Wil-  Pearce,  71  ild.  535,  IS  Atl.  910,  where 
liams,  86  Va.  696,  11  S.  E.  106,  19  Am.  it  is  determined  that  a  telegraph  or  tel- 
St.  Rep.  908,  8  L.  R.  A.  429n;  Stowers  ephone  company  is,  with  respect  to  the 
V.  Postal  Tel.,  etc.,  Co.,  08  Miss.  559,  rijjht  to  construct  its  lines  over  private 
9  So.  350,  12  L.  R.  A.  864n,  24  Am.  property,  just  as  much  subject  to  the 
St.  Rep.  290;  Board  of  Trade  Tel.  Co.  constitutional  prohibition  against  tak- 
V.  Bamett,  107  111.  507,  47  Am.  St.  ing  private  property  for  public  use 
Rep.  453;  McCormick  v.  Dist.  of  Col-  without  just  compensation  as  is  a  rail- 
umbia,  104  111.  507,  54  Am.  St.  Rep.  way  or  any  other  corporation  clothed 
290;  Peace  v.  Drew,  136  Mass.  75,  49  with  the  power  of  taking  private  prop- 
Am.  Rep.  14;  Postal  Tel.  Cable  Co.  v.  erty  for  public  use;  and  the  averment 
Eaton,  170  111.  513,  49  K  E.  365.  62  that  such  company  is  proceeding,  or 
Am.  St.  Rep.  390.  39  L.  R.  A.  722;  threatens  to  proceed,  to  construct  its 
Magee  v.  Overshiner,  150  Ind.  127,  49  line  of  poles  or  wires  on  and  over  tho 
N.    E.    951,    40    I..    R.    A.    370.    05    Am.  complainant's  land  without  his  leave  or 

(123) 


124  TELEGEAPII  AND   TELEPHONE   COMPANIES.  [^    129 

quire  the  right  to  occupy  the  lands  of  the  individual:  one  is  by  an 
agreement  entered  into  with  the  owner  of  the  land,  or  one  who  has 
the  right  to  manage  and  control  it ;  and,  the  other  is  by  a  condemna- 
tion proceeding  instituted  by  the  company.  With  a  few  exceptions, 
a  landowner  has  the  absolute  power  of  making  such  disposition  of 
his  land  as  he  may  see  fit.  He  may  sell,  rent,  lease,  mortgage,  or 
make  a  grant  or  gift  of  it  to  any  one,  by  any  kind  of  a  contract  or 
agreement  which  he  may,  in  good  faith  voluntarily  make.  Therefore, 
it  necessarily  follows,  that  he  may  make  any  kind  of  an  agreement 
with  a  telephone  company  which  the  latter  may  accept  for  the  con- 
struction of  a  line  of  wires  upon  and  across  his  private  property. 
He  may  sell,  or  give  it  a  right  of  way;  and  in  either  instance,  the 
parties  would  be  controlled  by  the  contract  or  agreement  made  be- 
tween them :  and,  in  case  the  right  is  acquired  by  the  means  of  pur- 
chase, the  consideration  for  which,  may  be  in  money  value ;  or,  it 
may  be  for  the  right  to  use  the  telephone  for  a  period  of  time ;  or, 
for  other  conveniences  which  the  landowner  may  receive  by  reason  of 
the  line  being  on  his  premises.  There  are  some  inconveniences  and 
liabilities  attached  to  a  company,  where  it  enters  upon  the  premises 
of  an  individual's  property,  by  a  mere  parol  license,  in  that  the  lic- 
ense, is  revocable  at  will  f  and  a  transfer  of  the  land,  is  an  implied 
revocation  of  it.^  Poles  and  wires  erected,  under  an  agreement  with 
a  landowner,  are  subject  to  the  lien  of  a  prior  mortgage,  which  in- 
cluded after  acquired  property.'* 

§  130.     By  condemnation  proceedings. 

If  an  agreement  with  the  landowner  cannot  be  obtained,  resort 
must  be  had  to  the  local  statutes,  authorizing  the  right  to  condemna- 

licenso,  and  without  paying  or  tender-  Southern    Telegraph,   etc.,    Co..    39    La. 

ing  him  compensation  for  the  use  of  his  Ann.   996,   3   So.   261,   4  Am.    St.   Eep. 

land   for  this   pui-pose,   is   sufficient   to  248:    Memphis   Bell   Tel.   Co.   v.   Hunt, 

entitle   him  to  an   injunction.      Under  16  Lea  456,  57  Am.  Rep.  237. 

a  license  from  a  municipal  corporation  '  Winter  v.  New  York  Tel.  Co.,  51  N. 

for  the  erection  of  a  telephone  line,  or  -T-  L.  83,  16  Atl.  188. 

a  fire-alarm  telegraph,  there  is  no  au-  "Andrews  v.  Delhi,  etc.,  Tel.  Co.,  73 

thority  to  enter  private   property   and  ^-   ^-  S"PP-  H-"- 

cut  off  the  limbs     of     trees,     although  '  ^rourmonth   County  Electric  Co.   v. 

they  project  over  the  line  of  the  side-  Central   K.  Co.,  54  Alt.  140. 

walk  on  Ihe  street:      Tissot    v.     Great 


§  131]  ovj:r  riMVATi:  i'Ijopektv.  125 

tion/'^  In  almost  all  of  the  states,  statutes  exist  providing  for  the 
acquisition  of  private  property  for  public  use  on  due  compensation 
being  given  or  tendered ;  and,  these  statutes  embrace,  either  expressly 
or  by  implication,  the  purposes  of  telegraph  or  telephone  companies. 
The  power  to  exercise  the  right  of  eminent  domain  is  sovereign  with- 
in itself  and  exists  without  a  constitutional  provision  to  that  effect ; 
and  the  same  may  be  delegated  to  any  corporation  exercising  a  pub- 
lic f unction. *"'  It  has  been  held  that  the  transmission  of  intelligence 
i)y  electricity  is  a  business  of  public  character,  to  be  exercised  under 
the  public  control,  in  the  same  manner  as  the  transportation  of  goods 
or  passengers  by  railroad.''  Every  citizen  holds  his  land  subject  to 
this  right  ;but  it  must  be  clearly  understood  that  the  easement  should 
be  acquired  for  public  use;  and  should  the  company,  attempting  to 
exercise  the  right,  construct  the  line  for  strictly  a  private  use,  it  may 
be  enjoined  by  the  landowner;  or,  otherwise,  it  will  be  liable  for  an 
unlawful  trespass.  The  owner  must  also  be  compensated,  for  the 
easement,  in  accordance  with  the  damages  sustained. 

§  131.     General  rule — conditions  precedent. 

The  general  rule  applicable  in  this  connection,  with  respect  to  the 
conditions  precedent  to  the  right  to  condemn,  the  nature  of  the  right 
and  the  procedure  to  be  adopted  are  those  governing  condemnations 
generally,  subject  only  to  the  modification  which  the  inherent  char- 
acter of  the  structure  under  consideration  demands  ?  ^  And,  while  this 
subject  could  be  more  appropriately  treated  under  the  title  of  emi- 

'-  Louisville  N.  0.  &  T.  R.  Co.  v.  Pos-  Co.  v.  Alexandria,  etc.,  U.  R.  Co..  7-5 

tal  Tel.  Co.,  10  So.  74.  Va.  780. 

■Swan   V.    Williams,   2    Mich.    427;  ''Xew  Orleans  M.  &     T.  R.  Co.     v. 

Warren  v.  First  Div.  St.  Paul,  etc.,  R.  Southern,  etc.,  Tel.  Co.,  53  Ala.  211; 

Co.,   18  Minn.  384;   Weir  v.   St.  Paul,  Pierce  v.  Drew,  136  Mass.  75,  49  Am. 

etc.,  R.  Co.,  18  Minn.  155;  Lisse  v.  St.  Rep.  7;  Turnpike  Co.  v.  News  Co.,  43 

Louis,  etc.,  R.  Co.,  2  Mo.  App.  155;  Ash  N.  J.  L.  381. 

V.  Cummings,  50  X.  H.  591;   Tinsman  *  Postal   Tel.      Cable   Co.   v.      Oregon 

V.  Belvidere  Dec.  R.  Co.,  26  N.  J.  L.  Short  Line  R.  Co.,  104  Fed.  623;  Lack- 

148,  69  Am.  Dec.  565;  Mattie  Bloom-  ie  v.  Mut.  U.  Tel.  Co.,  103  111.  401;  Pos- 

field,  etc..  Gas  Light  Co.  v.  Richardson.  tal  Tel.  Cable  Co.  v.  Morgan's  Louisi- 

63   Barb.   437;    Bloodgood   v.   Mohawk,  ana  R.,  etc.,   Co.,   49  La.   Ann.   58.   21 

etc.,  R.  Co.,  18  Wend.    (N.  Y.)    9,  31  So.  183;  Louisville,  etc.,  R.  Co.  v.  Pos- 

Am.  Dec.  313;  Alexandria,  etc.,  F.  R.  tal   Tel.    Cable    Co.,    68    .Miss.    806,    10 


126  TEIEGKAPH  AND   TELEPHONE    COMPANIES.  [§    131 

nent  domain,  where  it  should  be  more  thoroughly  discussed,  we  shall 
nevertheless  comment  on  the  matter  to  some  extent  here,  where  it  will 
be  considered  specifically  with  respect  to  the  rights  possessed  by 
telegraph  and  telephone  companies.  Where  these  statutes  have  dele- 
gated to  telephone  companies,  the  authority  to  exercise  the  power  of 
eminent  domain,  they  require  of  such  companies  certain  precedent 
conditions  before  the  right  can  be  legally  exercised ;  and  it  will  be  our 
purpose  to  relate  these  conditions. 

§  132.     Same  continued — petition — contents. 

One  of  the  conditions  precedent  to  be  performed  by  a  telephone 
company,  before  it  can  legally  exercise  the  power  of  eminent  domain 
is,  that  a  petition  be  filed  with  the  court  of  the  county  in  or  through 
which  the  line  is  to  be  constructed  in  which  the  location  of  the  land 
is  specified ;  setting  forth  the  names  of  the  petitioners,  their  residence 
and  authority  for  exercising  the  power;  the  names  of  the  owners  of 
the  lands  over  which  the  easement  is  sought,  their  residence  and  the 
interest  which  they  have  to  the  lands;  a  description  of  the  location, 
termini  and  route  of  the  land  line,  and  the  description  of  the  land 
and  that  part  which  the  line  is  to  traverse ;  it  should  give  the  size  of 
the  poles  to  be  used,  their  height,  length  of  cross-arms  and  distance 
apart;  it  should  ask  that  a  notice  be  given  and  commissioners  be  ap- 
pointed to  assess  the  amount  of  damages  to  be  awarded  for  such  con- 
demnation ;  and  that  the  same  be  sworn  to  by  the  petitioners,  acting 
in  the  capacity  of  its  corporate  authority.  There  might  be  mentioned 
other  conditions  to  be  alleged  in  the  petition,  before  the  power  could 
be  exercised ;  as  for  instance,  that  the  company  has  been  unsuccessful 
in  an  attempt  to  acquire  the  easement  by  an  agreement  with  the  land- 
owner ;  that  the  company  has  been  legally  incorporated ;  and,  that  it 
is  the  most  convenient  and  accessible  land  to  be  had  by  the  company 
for  the  right  of  way.  It  must  be  in  writing,  and  state  that  the  tak- 
ing is  necessary  for  public  use;. but  it  is  not  essential  in  every  in- 

So.  74;  Broome  v.  New  York,  etc.,  Tel.  J.  L.  490,  57  Atl.  448;   NicoU  v.  oSTew 

Co.,  49  N.  .J.  L.  624,  9  Atl.  754;  Duke  York,  etc.,  Tel.  Co.,   62  N.  J.  L.  733. 

V.  Central  New  Jersey  Tel.  Co.,  53  N.  42  Atl.  583,  72  Am.  St.  Rep.  666;  Pos- 

J.  L.  341,  11  L.  R.  A.  664,  21  Atl.  460;  tal  Tel.   Cable  Co.  v.  Norfolk,  etc.,  E. 

Coles  V.  Midland  Tel.,  etc.,  Co.,  67,  N.  Co.,  87  Vt.  349,  12  S.  E.  613. 


<^    134]  OVKR  PRIVATE  PROPKUTY.  127 

Stance  to  make  all  of  such  allegations,  as  the  statute  may  not  require 
such ;  and  in  fact  the  statutes  of  each  state  should  be  consulted  before 
filing  such  petitions  since  there  are  difForent  conditions  required  in 
the  different  states.  While  the  petition  is  one  of  the  conditions  pre- 
cedent to  a  company  becoming  empowered  with  the  authority  of  con- 
demnincr  the  lands  for  easements  each  of  the  conditions  stated  there- 
in  is  as  essential  to  be  showTi,  before  the  right  can  be  exercised  as 
the  petition  itself. 

§  133.     Same  continued — name  of  petitioners. 

It  is  very  essential  that  the  company  be  incorporated  in  order  that 
it  may  have  parties  appointed  who  may  have  the  authority  to  make  a 
petition  for  such  condemnation  proceedings.  It,  therefore,  follows 
that  an  unincorporated  company,  or  one  organized  by  individuals, 
for  strictly  private  purposes,  could  not  exercise  the  power  of  eminent 
domain.  We  presume  it  is  hardly  necessary  to  discuss  this  require- 
ment here,  for  this  is  a  condition  to  be  performed  by  all  bodies  aggre- 
gate before  they  can  do  any  corporate  acts ;  yet  it  is  a  condition  pre- 
cedent, nevertheless,  and  one  to  be  performed  before  there  can  be 
parties  to  such  a  petition.  The  names  and  residence  of  such  petition- 
ers should  be  given  in  such  a  manner  as  to  show  that  they  are  acting 
for  and  under  the  authority  of  the  telephone  company  seeking  the 
right  of  way.  In  other  words,  it  must  be  clearly  shown  that  it  is  the 
telephone  company  which  is  seeking  through  these  authorized  re- 
presentatives the  right  to  exercise  the  power  of  eminent  domain. 

§  134.     Same  continued — name    of    land-owners — their    residence 
and  interest  in  lands — several  tracts  or  interests. 

Another  condition  to  be  respected  by  the  company  before  the  power 
of  eminent  domain  can  be  exercised  is,  that  the  names  of  the  land 
owners,  their  residence  and  the  interest    which    they    claim    to    the 
land  shall  be  given  in  the  petition.  The  court  should  have  some  know 
ledge  of  these  facts  in  order  that  it  may  know  the  party  to  whom  no 
tice  should  be  given  of  the  condemnation  proceedings;  and  to  whom 
damages  should  be  awarded.     In  man}'  instances  the  land  through 
which  the  right  of  way  is  sought  is  held  in  trust  for  another:  or  is 
managed  and  under  the  control  of  a  2:uardian,  executor  or  administra- 


128  TELEGEAPir  AIS^D   TELEPIIOXE   COMPANIES.  [^    134 

tor.  When  such  is  the  case,  the  name  of  the  trustee,  guardian,  exe- 
cutor or  administrator  should  be  given  in  the  petition,  in  his  fiduciary 
capacity.  It  often  occurs  in  the  construction  of  a  line  of  wire  that 
tlie  land  over  which  the  right  of  way  is  sought  belongs  to  different 
owners  who  have  common  interest  therein;  or  it  is  in  several  pieces 
and  belonging  to  the  same  owner;  the  question  which  presents  itself 
is,  can  this  land,  in  such  instances,  be  condemned  in  one  proceeding  ? 
It  has  been  held  that  the  same  can  be  done,^  and  we  are  inclined  to 
thinlc  that  this  is  a  good  holding ;  because,  much  trouble  and  expense  • 
which  would  otherwise  be  incurred,  can  be  avoided  by  bringing  sev- 
eral suits  in  one.  While  the  duties  of  the  commissioners,  in  ascer- 
taining the  amount  of  damages  to  which  each  owner  would  be  entitled 
or  the  amount  of  damages  incurred  on  each  parcel  of  land,  would  be 
the  same;  yet  the  result  of  the  finding,  or  the  amount  of  damages 
assessed  might  be  quite  different,  so  it  would  be  an  easy  matter  for 
them  to  arrive  at  a  proper  and  correct  result  in  one  proceeding.  There- 
fore, where  possible,  this  should  be  done. 

§  135.     Same  continued — description  of  route. 

Another  essential  part  of  the  petition  is,  that  the  route  of  the  line 
should  be  sufficiently  described.  As  in  all  other  proceedings,  to  con- 
demn private  property  for  public  use,  a  clear  and  distinct  description 
of  the  land  over  which  the  right  of  way  is  to  be  laid  out  should  be  de- 
scribed so  clearly  and  accurately  as  to  give  any  one  a  sufficient  know- 
ledge as  to  its  location.  The  beginning,  ending  and  intermediate 
points  of  the  line  must  be  given.  The  statutes  generally  provide  the 
]iianner  in  which  the  description  of  the  route  should  be  given;  and 
when  they  do,  they  must  be  closely  complied  with  and  contain  such 
a  description  of  the  land  as  that  its  metes  and  bounds  may  be  ascer- 
tained from  the  public  records.  ^'^ 

•  Duke   V.    Central    New   Jersey   Tel.  on  the  inap   in  small   circles  of  black 

Co.,  35  Am.  &  Eng  Corp.  Cas.  1.  ink,   numbered   in   red   ink  from    1    to 

'*Anies  V.  Union  County,  27  Am.  &  27,    which    was    the    total    number    of 

Eng.  Corp.  Cas.  60.     In  a  certain  case  poles  to  be  erected.     The  distances  be- 

a    map    containing    the    description    of  tween  said  poles  were  indicated  by  fig- 

the  route  was  filed  with  the  petition.  ures  in  black  ink  between  the  circles. 

The  location  of  each  pole  was  indicated  The  distance  of  the  poles  from  the  fence 


§    137]  OVER  PEIVATE  PROPERTY.  129 

§  136.     Same  continued — description  of  poles. 

The  petition  should  also  give  the  size  of  the  poles  to  be  used,  their 
height,  length  of  cross-arms,  and  distance  apart.  A  map  or  drawing 
showing  the  general  course  of  the  line  and  the  distance  apart  the 
poles  are  located,  should  be  given  to  aid  in  the  description  of  the  route 
and  when  such  is  filed  with  the  petition  it  becomes,  a  part  of  same ; 
provided  sufficient  meaning  is  given  to  show  that  it  is  a  part  of  the 
petition.  ^^  The  object  in  giving  a  clear  description  of  the  route  and 
the  size  and  height  of  the  poles  and  their  distance  apart  and  the 
length  of  the  cross-arms  is,  to  provide  a  means  by  which  the  amount 
of  damages  to  be  awarded  may  be  assessed.  The  greater  the  space 
the  line  occupies  the  greater  should  be  the  damages  awarded.  In  many 
instances,  where  these  companies  construct  line  of  wires  across  priv- 
ate property,  the  owner  thereof  is  actually  deprived  of  only  such 
lands  as  that  occupied  by  the  poles;  and  when  this  is  the  case,  the 
damages  would  seem  to  be  small ;  and  yet,  the  fact  must  not  be  lost 
sight  of,  that  the  company  still  retains  an  easement  to  the  land,  over 
which  the  wires  are  strung ;  but,  it  is  held  principally  for  the  purpose 
of  entering  thereon  to  maintain  and  make  repairs  on  the  lines.  If 
the  cross-arms  arc  near  the  surface  and  heavily  strung  with  wires,  the 
landowner  would  be  deprived  of  more  of  his  land,  and  of  course  he 
would  be  entitled  to  a  greater  compensation. 

§  137.     Same  continued — notice — appointment  of  commissioners. 

The  petition  should  pray  for  notice  to  be  given  to  the  owner  of  the 
land,  over  which  the  easement  is  sought;  or,  to  the  party  who  has 
this  in  charge,  and  to  those  who  have  any  interest  therein,  in  order 
that  they  may  appear  in  court  to  contest  the  petition,  or  to  see  that 
proper  steps  have  been  pursued  for  condemning  the  land ;  or  to  con- 
test the  results  of  the  commissioners.  The  same  notice  is  required  to 
be  given    in    a    case    of    this   kind    as    that   required    in    all    other 

on   the  soutlierlj'   side   of  the  highway  highway.     It  was  held  that  the  descrip- 

was   indicated  hy  figures  in  black   ink  tion  conformed  to  all  the  requirements: 

beside  each  circle.     The  distance  of  the  Duko  v.   Xcw  Jersey  Tel.   Co.,  35  Am. 

poles  from  the  fence  on  the  northerly  &  Eng.  Corp.  Cas.  1. 

side  of  the  highway  was  indicated  by  "Duke  v.   New  Jersey  Tel.   Co..   .S.") 

figures  in  or  about  the   center  of  the  Am.  &  Eng.  Corp.  Cas.  1. 
T.  Si  T.— 9 


1'30  TELEGEAPH  AXD  TELEPHONE   COMPANIES.  [§    137 

chancery  or  equity  court  proceedings.  The  petition  also  should 
pray  that  a  commission  be  appointed  by  the  court,  whose  du- 
ties shall  be  to  investigate  the  route  and  determine  the  amount  of 
damages  to  be  awarded ;  but,  in  order  to  be  better  posted  with  respect 
to  the  duties  of  these  commissioners,  it  would  be  well  for  the  reader 
to  consult  the  statutes  of  his  state,  as  their  duties  are  regulated 
thereby. 

§  138.     Same  continued — sworn  to  by  officers. 

Most  of  the  statutes  provide  that  the  petition  should  be  sworn  to 
by  some  one  having  authority  to  act  for  the  corporation.  In  the  or- 
ganization of  all  corporations,  certain  corporate  duties  are  to  be  per- 
formed by  oflScers  empowered  to  do  such  acts.  It  is  generally  provid- 
ed in  the  articles  of  incorporation  that  certain  officers,  such  as  the 
board  of  directors  or  the  president  or  attorney,  shall  have  the  power 
to  bring  suit  for  the  company;  and  when  this  is  the  case,  and  it  is 
necessary  for  the  petition  to  be  sworn  to,  only  such  officers  or  parties 
can  swear  to  the  petition.  The  form  of  the  signature  would  be  in  tlie 
name  of  the  corporation,  by  said  officers  or  attorney. 

§  139.     Same  continued — failure  to    acquire    land    by    agreement 
with  land-owner. 

Many  of  the  statutes  make  it  incumbent  upon  the  company  to  first 
make  an  attempt  to  acquire  the  right  of  way  by  an  agreement  with 
the  landowner,  before  they  resort  to  a  condemnation  proceeding.  The 
object  of  such  a  provision  is  to  avoid  litigation,  and  to  expedite  the 
construction  of  the  line.  The  landowner  and  the  company  might,  and 
generally  do,  arrive  at  a  better  understanding  by  these  mutual  agree- 
ments than  they  would  under  a  condemnation  proceeding;  so,  to  re- 
quire the  company  to  first  make  an  attempt  to  acquire  the  right  of 
way  by  these  agreements  would  often  avoid  endless  and  constant  ex- 
pense and  needless  litigation.  Wliere  statutes  require  these  steps,  it 
is  necessary  that  the  petition  should  allege  the  fact  that  an  unsuc- 
cessful attempt  had  been  made  to  acquire  the  right  of  way  by  an 
agreement  witli  the  landowner,  or  the  party  having  the  control  over 
the  land  and  the  person  who  would  be  a  necessary  party  in  a  con- 
demnation proceeding. 


<§>    140]  OVER  PRIVATE   PROPERTY.  131 

§  140.     The  interest  acquired. 

When  these  companies  construct  their  line  of  wires  upon  the  prop- 
erty of  private  persons,  they  do  not  acquire  a  fee  to  the  land,  but  only 
an  easement  to  the  right  of  way:  the  landowner  retains  the  right  to 
use  the  land  for  any  purpose  he  may  see  fit;  provided,  the  same  does 
not  conflict  with  or  defeat  the  rights  of  these  companies.^-  It  is  the 
general  rule  that  where  these  easements  are  over  other  rights  of  way 
— as  railroad  rights  of  way — the  company  acquires  no  interest  to  the 
land  between  the  poles  and  that  over  which  its  wires  are  stretched, 
more  than  to  go  thereon  for  the  purpose  of  maintaining  and  repair- 
ing the  line;^^  the  owners  of  the  first  original  easement  may  use  this 
space  for  any  purpose,  they  may  see  fit.  We  see  no  reason  why  the 
same  rule  may  not  be  applied  to  companies  whose  lines  are  across  pri- 
vate property.  It  is  true  that  the  o^^mer  of  the  land  should  not  use 
this  strip  of  land,  in  a  manner  that  would  obstruct  its  use,  or  prevent 
the  employees  of  the  company  from  entering  thereon,  for  the  purpose 
of  the  repairing  and  maintaining  the  line.  He  may  cultivate  the  soil, 
or  use  it  for  any  other  purpose  which  would  not  interfere  with  the 
use  of  the  wires ;  but  should  he  cultivate  or  use  the  land  for  other  pur- 
poses, it  is  done  with  the  understanding  that  the  company's  employees 
may  go  thereon  for  the  purpose  of  maintaining  the  lines,  without 
being  giiilty  of  trespass.  Of  course  these  employees  could  not  enter 
upon  and  trample  over  any  space  of  land  they  may  see  fit;  but  the 
width  of  this  space  should  be  reasonable.  ^^     The  lando^vncr  is  not  un- 

"The  statute  does  not  designate  the  Colorado  Postal  Tel.  Co.,  30  Colo.  133, 

width  of  the   strip   of  land  that  may  where  it  was  further  held  that  a  strip 

be   condemned   for  telegraph   purposes,  of  land  half  a  rod  in  width  was  not  too 

but  only  authorizes  such  companies  to  much,  and  that  the  landowner  wa''  not 

acquire  such  an  amount  of  land  as  may  bound  to  fence  his  land  from  this  strip. 

be  necessary  and  where  only  one  line  "  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel. 

of    poles    is    specified   in    the    petition,  Co.,  173  ill.  508,  51  N.  E.  382;  Chicago, 

and  whore  the  evidence  does  not  show  etc.,  R.  Co.  v.  Cliicago,  149  111.  457,  37 

that  half  a  rod  in  width  is  an  unrea-  K   E.   78,  and   Id.,   166   U.   S.   226,   17 

sonable  amount  of  land,  the  judgment  Sup.   Ct.   581 ;    Mobile,  etc..   R.   Co.  v. 

condemning  that  much  of  the  land  will  Postal  Tel.   Cable  Co.,  26   So.   370.  76 

be    sustained,    and    will    be    construed  Miss.  731,  45  L.  R.  A.  223. 

to  authorize  the  erection  of  but  one  set  '*  Duke   v.   New  Jersey   Tel.    Co.,   35 

of  poles.     Lockie  v.  Mutual  Union  Tel.  Am.  &  Eng.  Corp.  Cas.  1. 
Co.,  103  111.  401 ;  Union  Pac.  R.  Co.  v. 


132  TELEGEAPH  AND  TELEPHONE   COMPANIES,  \_^    140 

der  any  obligation  to  keep  up  or  protect  this  strip ;  so,  where  he 
abandons  it,  or  leaves  it  unused,  or  uncultivated,  the  company  can 
look  to  him  for  no  protection  over  it.  If  it  deteriorates  in  value,  or 
becomes  worthless  by  his  failure  to  keep  it  up,  he  is  the  loser,  and  the 
company  cannot  look  to  him  for  any  assistance.  It  has  been  held  that 
the  landowner  was  not  bound  to  fence  his  land  from  this  strip,  but 
that  it  may  be  left  unused  or  unconnected  therefrom. ^^ 

§  141.     Measure  of  damages. 

It  is  generally  very  difficult  to  determine  the  exact  amount  of  dam- 
ages which  should  be  awarded  to  the  land  owner  for  the  right  of  way 
for  a  telegraph  or  a  telephone  company.  He  is  actually  deprived  of 
only  the  land  which  the  poles  occupy,  and  may  cultivate  that  lying 
between  these ;  for  this  reason,  the  damages  should  be  small.  It  has 
been  held,  that  the  landowner  is  entitled  to  compensation  where  the 
wires  are  merely  strung  across  his  soil;  although  there  is  no  actual 
occupation  of  the  land.^^  It  may  be  questioned  whether  or  not  the 
courts  would  recognize  such  an  injury.^"  It  appears  to  us  that  the 
injury  to  the  soil  is  so  slight  that  it  would  be  a  case  for  the  application 
of  the  rule,  de  minimis  lex  non  curat.  Of  course,  if  the  wires  were 
strung  so  low  or  near  to  the  land  as  to  interfere  wdth  the  use  of  this 
space,  the  question  would  be  quite  different.  In  such  instances,  the 
landowner  would  be  entitled  to  the  value  of  the  use  of  this  space,  of 
which  he  is  deprived ;  but  as  a  general  rule,  the  parties  are  not  con- 
fronted with  questions  of  this  nature':  as  the  wires  are  almost  always 
strung  sufficiently  high  above  the  surface  of  the  soil  as  to  give  ample 
room  to  the  owmer  thereof  to  use  the  intervening  space.  In  other 
words,  the  owner  of  the  space  between  the  poles  and  that  over  which 
the  wires  are  strung  is  not  deprived  of  its  use ;  then,  the  question  is. 
What  amount  of  damages  would  he  be  entitled  to?  The  rule  laid 
down  by  the  courts  for  the  measurement  of  damages  to  railroads  for 
the  construction  of  these  lines  upon  their  rights  of  way  is,  that  the 
measure  of  damages  suffered  by  the  railroad  is  not  the  value  of  the 

'=  Union  Pac.  Pv.   Co.  v.  Colo.  Postal  '"28  Am.  Law  Reg.  69;   Pollock     on 

Tel.    Cable   Co.,    30   Colo.    133;    Lockie       Torts,  281. 

V.  Mut.  Union  Tel.   Co..   103   Til.  401.  '^  Rocke   v.   American  Tel.,   etc.,   Co., 

41   X.  J.  Eq.  35,  2  Atl.  CIS. 


<^  141] 


OVER  PRIVATE  PROPERTY. 


133 


land  embraced  witliiii  tlie  right  of  way  between  the  poles  and  under 
the  wires;  but  the  damages  is  the  extent  to  which  the  value  of  the  use 
of  such  space  by  the  railroad  company  is  diminished  by  the  use  of  the 
same  by  the  telcgrnph  company  for  its  purposes. ^^  This  rule  may  be 
a  means  of  ascertaining  the  measure  of  damages  for  the  right  of  way 
of  a  telegraph  or  telephone  company  across  private  property.  As  for 
instance,  the  owner  of  the  land  is  not  to  be  compensated  for  the  value 
of  the  space  of  land  between  the  poles  and  that  occupied  by  the  said 
poles ;  but  the  damages  to  which  he  should  be  entitled  is  the  extent  to 
which  the  value  of  the  use  of  tho  Innd.  occupied  by  the  poles — and  the 
spaces  between  them — is  diminished  by  the  use  of  the  same  by  these 
companies.  In  fact,  the  space  between  the  poles  is  diminished  ap- 
proximately nothing,  and  for  which  the  damages  should  be  small ;  yet, 
on  account  of  the  maxim,  nijvs  cat  solum,,  ejus  est  usque  ad  caelum, 
he  should  be  entitled  to  something.  There  is  no  question  but  that  he 
is  entitled  to  compensation  for  the  use  of  the  ground  upon  which  the 
poles  are  erected ;  this  is  to  be  regulated  by  the  size,  number  of  poles, 
and  the  value  of  the  ground  taken. 


"  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel. 
Co.,  173  111.  508,  51  N.  E.  382;  Chica- 
go, etc.,  R.  Co.  V.  Chicago,  149  111.  457. 
37  N.  E.  78,  and  Id.,  166  U.  S.  226,  17 
Siipt.  Ct.  581. 

Again  the  court  says:  "The  spaces 
over  which  the  wires  are  strung  from 
pole  to  pole  are  not  taken  by  the  tele- 
graph company.  Such  damage  as  the 
construction  and  ojjeration  of  the  tele- 
graph line  causes  to  the  spaces  between 
the  poles  the  appellants  are  entitled  to 
recover.  The  telegraph  company  does 
not  acquire  by  the  judgment  of  con- 
denuiation  the  fee  to  any  portion  of  the 
right  of  way.  Any  construction  wliich 
holds  that  it  does  acquire  the  fee  is 
not  sanctioned  by  the  language  of  the 
act  in  relation  to  telegraph  companies. 
The  act  does  not  confer  the  right  to  use 
the  land  condemned  for  any  other  pur- 


pose than  for  telegraph  purposes.  The 
company  cannot  take  possession  of  it 
or  use  it  for  any  other  purpose  than  to 
erect  telegraph  poles,  and  to  suspend 
wires  upon  them,  and  to  maintain  and 
repair  the  same.  The  company  will 
liave  the  right  to  enter  upon  that  por- 
tion of  the  right  of  way  which  is  be- 
tween the  telegraph  poles  and  under 
its  wires  for  the  purpose  of  repairing 
its  lines.  But  the  telegraph  company 
acquires  no  right  to  exclude  the  rail- 
road company  from  the  use  of  the  land. 
The  ownership  of  the  railroad  company 
remains  as  it  was  before,  ^^hi]e  the  tel- 
egi-aph  company  merely  acquires  an 
casement  upon  what  it  condemns  for 
the  purpose  of  entering  thereon  in  or- 
der to  erect  and  repair  the  line.  St. 
Louis  &  C.  R.  Co.  V.  Postal  Tel.  Co. 
(1S9S),  173  111.  508.  51  X.  E.  382. 


CHAPTER  IX. 

ON  RAILROAD  RIGHT  OF  WAY. 

142.  Right  acquired  by  act  of  Congress. 

143.  Additional  servitude. 

144.  Subsequent  purchaser  may  recover. 

145.  When  for  benefit  to  railroad. 

146.  Same  continued — no  additional  burden. 

147.  Same  continued — must  be  in  good  faith. 

148.  Same  continued — not  taxable. 

149.  Railroad  companies  to  be  compensated. 

150.  Right  to — must  first  be  acquired. 

151.  Interest  acquired  by  telegraph  companies. 

152.  By  condemnation. 

153.  Exception  to  rule. 

154.  Same  continued— cannot  be  defeated  by  claiming  it  should 

be  on  other  lands. 

155.  Foreign  telegraph  companies— right  to  condemn. 

156.  Same  continued — consolidation — agency. 

157.  Same  continued — general  and  special  law^s. 

158.  Must  be  in  good  faith. 

159.  What  portion  of  right  of  way  may  be  taken. 

160.  Nature  of  petition. 

161.  Same  continued — necessity  for  taking. 

162.  May  condemn  land  in  several  counties  in  one  proceeding. 

163.  Same  continued — constitutional. 

164.  Who  may  be  appointed  as  commissioners  and  how. 

165.  Duty  of  commissioners. 

166.  Special  court  for. 

167.  The  award  of  commissioners. 

168.  May  have  new  award. 

169.  Same  as  in  other  condemnation  proceedings. 

170.  Duty  the  company  owes  to  the  railroad  company. 

171.  The  measure  of  damages— extent  of  injury. 

172.  Same  continued— the  expense  gone  to— no  reason. 

173.  Same   continued — measurement — true  rule. 

174.  Exclusive  right — on  railroads. 

175.  Contract  with  railroad  company  to  that  effect. 

176.  State  legislation— no  exclusive  grant. 

177.  Act  of  Congress— prohiuits  exclusive  right. 

178.  Same  continued— contra  view— lines  on  same  poles. 

179.  Municipal  grants — exclusive — cannot  grant. 

180.  Vested  rights— cannot  be  impaired. 

181.  Same  continued — right  reserved. 

182.  Same  continued — police  power. 

183.  Right  to  extend  lines. 

(134) 


§    143]  ON  KAILKOAU   lUGlIT   OF   WAY.  135 

§  142.     Right  acquired  by  act  of  Congress. 

By  act  ^  of  Congress,  "Any  telegraph  company  now  organized,  or 
which  may  hereafter  be  organized  under  the  hiws  of  any  state  of  the 
Union,  shall  have  the  right  to  construct,  maintain  and  operate  lines 
of  telegraph  .  .  .  over  and  along  any  of  the  military  or  post- 
roads  of  the  United  States,  which  have  been  or  may  hereafter  be  de- 
clared such  by  act  of  Congress,  .  .  .  provided  said  lines  shall 
not  be  so  constructed  as  to  interfere  with  the  travel,"  on  such  roads ; 
and  provided  also,  "that,  l)efore  any  telegraph  company  shall  exercise 
any  of  the  powers  or  privileges  conferred  by  this  act,  such  company 
shall  file  its  written  acceptance  with  the  postmaster-general  of  the  re- 
strictions and  obligations  required  by  this  act."  Congress  in  1872  de- 
clared all  the  roads  in  the  country,  which  are  now  or  may  hereafter 
be  in  operation,  post-roads.  Statutes  have  been  enacted  in  most  of 
the  states,  which  grant  to  telegraph  and  telephone  companies  similar 
rights ;  but  these  statutes  are  subordinate  to  said  acts :  ^  however,  they 
may  be  resorted  to  for  condemnation  proceedings  since  the  same  is  not 
provided  for  in  the  former  acts.^  Therefore,  it  is  seen  that  a  part  of 
an  easement,  which  has  already  been  gi'anted  for  a  public  enterprise, 
may  afterwards  be  condemned  for  another  easement  Avhich  is  to  be 
used  for  another  public  purpose.  This  act  of  Congress  does  not  give 
these  companies  the  right  to  construct  a  line  of  wires  upon  the  right 
of  way  of  a  railroad  company  without  first  obtaining  the  consent  of 
the  railroad,  or  making  a  contract  with  the  original  landowner,*  or 
condemning  the  right  of  way. 

§  143.     Additional  servitude. 

When  these  companies  have  acquired  the  right  to  construct  a 
line  of  wires  along  and  upon  the  right  of  way  of  a  railroad  company, 
the  natural  inquiry  is.  Whether  or  not  it  is  an  additional  servitude  to 
the  property ;  if  so,  who  are  entitled  to  compensation,  and  how  much  ? 
The  general  rule  is,  that  the  construction  of  a  telegraph  or  telephone 

'  July  24,   186G.  *  West.  U.  Tel.  Co.  v.  Ann  Arbor  R. 

'  Postal  Tel.   Cable   Co.   v.  IMorgan's  Co..  00  Fed.  379 ;  Postal  Tel.  Cable  Co. 

Louisiana,  etc.,  R.  Co.,  49  La.  Ann.  58,  v.  Southern  R.  Co.,  89  Fed.  190;  Postal 

21  So.   183.  Tel.  Cable  Co.  v.  Norfolk,  etc.,  R.  Co., 

^  See   above   note  for  reference.  88  Va.  920,  14  S.  E.  803. 


136  TELEGEAPH  AXD  TELEPHONE   COMPANIES.  [<§,    143 

line,  along  and  upon  the  right  of  way  of  a  railroad — unless  the  same 
is  constructed  by  the  latter  in  good  faith,  and  for  its  own  benefit — is 
an  additional  burden  to  the  easement,  for  which  the  owTier  of  the  fee, 
and  also,  the  first  and  original  owner  of  the  easement,  shall  be  com- 
pensated.^ In  many  cases,  the  fee  in  the  right  of  way  remains  in  the 
original  landowner,  while  there  is  merely  an  easement  granted  to  the 
railroad  which  will  revert  to  the  former  on  the  relinquishment  of  the 
easement.  Therefore,  Avhen  this  is  the  case,  the  owner  of  the  land 
over  which  the  line  is  to  be  built  should  always  be  compensated  for  the 
additional  burden ;  and  yet  it  is  not  meant  by  this  that  the  railroad  is 
prevented  from  also  recovering  from  these  companies  compensation 
for  the  use  of  the  roadbed.  The  right  of  ways  granted  to  railroad 
companies  are  similar  to  the  license  granted  by  an  abutting  street 
owner  to  the  use  of  the  land  on  which  the  street  is  constructed ;  and 
as  has  been  seen,  the  owner  should  receive  additional  compensation 
for  all  additional  burdens  placed  on  the  street.  In  some  instances, 
the  railroad  company  acquires  the  fee  to  the  easement:  and,  when 
such  is  the  case,  the  land  acquired  in  such  grant  becomes  its  private 
property  just  the  same  as  land  acquired  by  any  individual;  and  it 
has  the  same  interest  in  and  can  dispose  of  it  just  the  same  as  any  in- 
dividual. It  would  be  unconstitutional  to  permit  a  telegraph  or  tele- 
phone company  to  condemn  the  right  of  way  of  a  railroad  company, 
when  the  fee  was  in  the  latter ;  or  to  use  its  premises  for  a  line  of 
wires  without  first  compensating  the  railroad  company,  since  it  would 
be  taking  private  property  without  due  compensation.® 

§  144.     Subsequent  purchaser  may  recover. 

It  is  not  necessary  that  the  fee  in  the  land  over  which  the  right  of 
way  is  laid  out  should  be  in  the  original  landowner  at  the  time  the 
additional  compensation  is  demanded,  but  a  subsequent  purchaser 
may  maintain  an  action  for  damages ;  ^  however,  neither  the  original 

'West.  U.   Tel.   Co.   v.  American  U.  Southern,  etc.,  Tel.  Co.,  53  Ala.   211; 

Tel,  Co.,  0  Biss.   (U,  S.)   72;  American  Pensacola  Tel.  Co.  v.  West.  U.  Tel.,  96 

Tel.,  etc.,  Co.  v.  Pearce,  71  Md.  535,  28  U.  S.  1. 

Am.   St.  Rep.   227,   7   L.   R.   A.   200n:  "Southern  Ry.  Co.  v.  Southern,  etc., 

Phillips  V.   Postal  Tel.   Cable  Co.,    130  Tel.  Co.,  46  Ga.  43,   12  Am.  Rep.  585. 

N.  Car.  513,  41  S.  E.  1022,  89  Am.  St.  '  Philips  v.  Postal  Tel.  Cable  Co.,  130 
Rep.  868;  New  Orleans,  etc.,  R.  Co.  v. 


<§>    146]  O^'    EAILROAD  RIGHT   Ui-    WAY.  137 

nor  subsequent  owners  have  any  right  to  an  accounting  for  the  rents 
and  profits  received  from  the  telegraph  company,  under  its  contract 
with  the  railroad.® 

§  145.     When  for  benefit  to  railroad. 

There  is  an  apparent  exception  to  the  general  rule  that  the  original 
landowner,  when  the  fee  is  in  him,  shall  be  additionally  compensated 
for  the  construction  of  a  telegi'aph  line  along  the  right  of  way  of  a 
railroad.  Thus,  he  would  not  be  entitled  to  further  compensation  if 
the  line  is  constructed  by  the  railroad,  in  good  faith,  for  its  own  use, 
and  when  it  is  reasonably  necessary  for  its  own  use.®  A  telegraph 
line  if  not  indispensable  to  a  railroad  company  tends  so  much  to  facil- 
itate its  business  that  it  has  a  right  to  build  such  a  line  and  to  use  its 
right  of  way  therefor ;  and  it  may  remove  all  obstructions  thereon  for 
the  purpose  of  constructing  the  same.  Although  it  may  have  but  an 
easement  in  the  land  and  that  easement  limited  to  its  use  for  railroad 
purposes,  yet  a  telegraph  is  so  convenient,  if  not  indispensable  to  the 
business,  that  it  may  cut  down  every  tree  and  bush  on  the  right  of 
way,  if  necessary  for  the  most  efficient  use  of  a  line  built  by  it  over 
and  upon  such  right  of  way,  just  as  it  may  dig  away  a  hill  or  fill  up  a 
ravine  for  the  sake  of  a  water  tank  or  a  station  house.  ^° 

§  146.     Same  continued — no  additional  burden. 

When  telegraph  line  is  constructed  by  a  railroad  company  upon  its 
roadbed  for  its  owti  use,  there  is  no  additional  servitude  placed 
thereon  for  which  the  landowner  may  recover  additional  damages, 
since  it  is  merely  a  legitimate  development  of  the  easement  originally 
acquired.  ^^     If  the  line,  however,  is  not  constructed  for  such  a  pur- 

X.  Car.  513,  89  Am.   St.  Eep.   868,  41  "West.  U.  Tel.  Co.  v.  Rich,  19  Kan. 

S.   E.    1022.  517,  27  Am.  Rep.  159;  Southern  R.  Co. 

»  Chicago,  etc.,  R.  Co  v.  Snyder,  95  N.  v.   Southern,  etc.,  Tel.  Co.,  46  Ga.   43. 

W.  183.  12  Am.  Rep.  585;   St.  Jas.  &  D.  C.  R. 

"West.  U.  Tel.  Co.  v.  Rich,  19  Kan.  Co.  v.  Drydcn,  11  Kan.  186. 
517,  27  Am.  Rep.   159;  American  Tel.  '^Taggart  v.  New-port  St.  R.  Co..  16 

Co.  V.  Pcarce,  71  Md.  535,  18  Atl.  910.  R.  I.  663;  Hodges  v.  West.  U.  Tel.  Co.. 

28  Am,  St.  Rep.  227,  7  L.  R.  A.  200n :  133  N.  Car.  225,  45  S.  E.  572. 
Adams   v.   Louisville,   etc..   R.    Co.,    13 
So.  932. 


138  TELEGRAPH  A^'D  TELEPHONE   COMPANIES.  [§    146 

pose,  it  will  be  a  new  servitude,  putting  an  additional  burden  on  the 
land  for  M'liieh  the  original  owner,  of  the  land  would  be  entitled  to 
compensation.^-  Such  use  is  presumed  to  have  been  contemplated  in 
the  original  condemnation ;  and  the  damages  resulting  therefrom  are 
part  of  the  damages  included  in  the  assessment  therefor.  In  other 
words,  the  railroad  company  may  use  its  right  of  way,  not  merely  for 
its  track,  but  for  any  other  building  or  erection  which  reasonably 
tends  to  faciliate  its  business  of  transporting  freight  and  passengers ; 
and,  by  such  use,  it  in  no  manner  transcends  the  purposes  and  extent 
of  the  easement,  or  exposes  itself  to  any  claim  for  additional  damages 
to  the  original  landowner.  ^^ 

§  147.     Same  continued — must  be  in  good  faith. 

In  order  to  avoid  compensating  the  landowner  again  for  the  use 
of  telegraph  lines  upon  the  right  of  way  of  the  railroad,  the  same 
must  have  been  constructed  by  the  railroad,  in  good  faith,  for  its  own 
use.  If  it  is  constructed  by  any  company  other  than  the  railroad,  but 
the  latter  is  to  use  it  for  the  business  of  operating  trains  and  is  to  pay 
the  telegraph  company  rental  for  such  use ;  or,  if  it  is  to  give  the  tele- 
graph company  the  compensation  which  the  former  would  be  entitled 
to  receive  for  the  use  of  the  right  of  way  by  the  latter ;  or,  of  it  enters 
into  any  kind  of  an  agreement  with  the  telegraph  company  whereby 
the  railroad  company  is  merely  to  use  the  wires  of  the  former  in  the 
manipulation  of  the  trains  and  other  business  necessary  for  the  carry- 
ing out  of  the  public  and  corporate  duties,  and  not  to  be  an  owner  in 
any  manner  of  the  lines,  ^^  the  owner  of  the  fee  would  be  entitled  to 
additional  compensation  for  the  use  of  his  land.^^     Should,  however, 

'■■^  West.  U.  Tel.  Co.  v.  Rich,  19  Kans.  the  exclusive  use  of  the  railroad,   and 

517,  27  Am.  Rep.   159;   American  Tel.,  to  connect  it  with  all  the  offices  along 

etc.,  Co.  V.  Pearce,  71  Md.  535,  18  Atl.  the  route.     It  was  held  that  this  con- 

910,  28  Am.  St.  Rep.  227,  7  L.  R.  A.  tract  did  not  amount  to  a  sale  of  the 

200n.  wire   to   the   railroad   company,   and   a 

"West.  U.  Tel.  Co.  v.  Rich,  19  Kan.  lessee  of  the  road  would  have  no  right 

517,  27  Am.  Rep.   159.  to  the  wire  other  than  to  use  it  in  its 

'*  See,  West.  U.  Tel.  Co.  v.  West.,  etc.,  telegraphic  service. 
R.   Co.,   Dl   U.   S.  283.     The  telegraph  -^  American  Tel.,  etc.,  Co.  v.  Pearce, 

company    contracted    with   a    railroad  71   Md.   535,    18  Atl.   910,   28   Am.   St. 

corporation  to  put  up  a  special  wire  for  Rep.  227,  7  L.  R.  A.  200n. 


<§!    149]  ON   KAILKOAD   KIGIIT   OF   WAY.  139 

the  line  be  built  jointly  by  the  railroad  and  telegraph  companies ;  or, 
should  it  be  constructed  by  these  two  companies  as  partners — and,  in 
either  instance,  it  is  understood  that  the  railroad  company  is  to  use 
the  wires  for  its  corporate  purposes — the  landowner  would  not  be  en- 
titled to  additional  compensation  from  either  of  these  companies.^® 
If  the  railroad  company  could  build  by  itself  without  liability,  it 
would  not  assume  any  liability  by  building  with  another.  Whatever 
it  could  do  and  would  have  done  for  its  own  use  and  benefit,  and  was 
so  done,  would  be  so  far  as  the  landowner  is  concerned,  damnum 
absque  injuria,  no  matter  who  bore  the  expense;  or,  perhaps  more 
correctly  speaking,  it  would  be  damages  already  paid  for.^'^  The  tele- 
graph line  may  have  been  originally  constructed  by  the  railroad  com- 
pany for  its  o\\Ti  use  but  upon  a  transfer,  of  such  a  line  by  the  rail- 
road company  to  a  telegraph  company,  the  o^vner  of  the  fee  may 
claim  compensation.^^ 

§  148.     Same  continued — not  taxable. 

Telegraph  and  telephone  companies  are  generally  taxed  similarly 
to  railroad  companies ;  that  is,  they  are  assessed  with  so  much  taxes 
for  every  mile  of  their  line.  Statutes  which  provide  that  these  com- 
panies shall  be  thus  taxed,  unless  clearly  expressed  to  that  effect,  will 
not  apply  to  companies  built  by  railroads  for  the  purpose  of  manag- 
ing its  trains  and  not  for  profit.  ^^  In  such  cases,  these  lines  are  used 
by  the  railroad  companies  as  an  indispensable  part  of  their  machinery 
for  the  safe  and  expeditious  moving  of  their  trains. 

§  149.     Railroad  companies  to  be  compensated. 

It  is  not  our  purpose  to  leave  on  the  mind  of  the  reader  the  impres- 
sion that  railroad  companies  are  not  to  be  compensated  for  the  ease- 
ment gi'anted  to  telegraph  companies  over  the  former's  rights  of  way 
for  the  construction  of  lines  of  such  companies,  when  the  fee  is  in  the 
original  lando^\^ler,  for  such  is  not  the  fact.  These  lines  are  regarded 
as  subjecting  the  easement  of  a  railroad  to  an  additional  servitude, 

•"West.  U.  Tel.  Co.  v.  Rich.  19  Kan.  '« Hodges  v.  West.  U.  Tel.  Co..  133  X. 

517.  27  Am.  Rep.  159.  Car.  225,  45  S.  E.  572. 

'•West.  U.  Tel.  Co.  v.  Rich,   19  Kan.  '» Adams  v.  Louisville,  etc..  R.  Co.,  13 

517,  27  Am.  St.  Rep.  159.  So.  932. 


1-iO  TELEGRAPH  AXD  TELEPnONE   COMPANIES.  [<§,    149 

and  the  company  is  entitled  to  compensation  therefor.^^  The  ease- 
ment granted  to  railroad  companies  is  for  the  purpose  of  constructing 
railway  facilities  thereon;  but  they  have  sufficient  title  in  the  ease- 
ment to  demand  compensation  for  any  additional  rights  of  way  to  be 
constructed  thereon,  as  that  of  an  easement  granted  to  a  telegraph 
company;  to  permit  one  of  these  companies  to  construct  a  line  on 
such  easement,  without  first  compensating  the  railroad  company, 
would  be  unconstitutional,  as  it  would  be  taking  property  without  due 
compensation.^^  The  same  rule  applies  in  these  cases,  as  that  of 
acquiring  a  right  of  w^ay  across  private  property,  or  upon  the  public 
highway — that  is,  the  telegraph  company  should  first  try  to  acquire 
an  easement,  along  and  uj^on  the  right  of  way  of  the  railroad,  by  an 
agreement  with  the  latter ;  ~"  but  if  this  cannot  be  accomplished  by 
contract,  the  telegraph  company  may  proceed  to  a  condemnation  pro- 
ceeding.^^ 

§  150.     Right  to — must  first  be  acquired. 

The  right  which  a  telegraph  company  may  have  to  construct  a  line 
of  wires  on  the  right  of  way  of  a  railroad  company  must  first  be  given 
by  either  some  federal  or  state  statute,  or  by  both.  For  instance, 
where  a  statute  provides  that  telegraph  companies  may  construct 
their  lines  "along  and  parallel  to  any  of  the  railroads  of  the  states," 
it  does  not  authorize  the  condemnation  of  a  right  of  way  by  a  tele- 
gTaph  company  along  and  upon  a  right  of  way  of  a  railroad  com- 

=»  Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  Tel.  Cable  Co.,  68  Miss.  806,  10  So.  74. 

etc.,  R.  Co.,  6  Biss.  (U.  S.)   158;  West.  See,   also,  Baltimore,   etc.,  Tel.   Co.   v. 

U.  Tel.  Co.  V.  Atlantic,  etc.,  Tel.  Co.,  Morgan's  Louisiana,  etc.,  R.  Co.,  37  La. 

7  Biss.   (U.  S.)   367;  West.  U.  Tel.  Co.  Ann.  883;  Southeasteni  R.  Co.  v.  Euro- 

V.  American  U.  Tel.   Co.,  9   Biss.    (U.  pean,  etc.,   Electric  Printing  Tel.   Co., 

S.)    72;    Kester  v.   West.   U.   Tel.   Co.,  0  Exch.  363. 

108  Fed.  926 ;   Southwestern  R.  Co.  v.  •'■  Southwestern   R.   Co.   v.    Southern, 

Southern,  etc.,  Tel.  Co.,  46  Ga.  43,  12  etc.,  Tel.  Co.,  46  Ga.  43,  12  Am.  Rep. 

Am.  Rep.  585;  American  Tel.,  etc.,  Co.  585. 

V.  Pearce,  71  Md.  535,  18  Atl.  910,  28  « Postal  Tel.     Cable  Co.  v.     Oregon 

Am.   St.  Rep.   227,   7   L.   R.  A.   200n;  Short   Line   R.    Co.,   23    Utah   474,    65 

Northwestern  Tel.  Exch.  Co.  v.  Chicago,  Pac.  735,  90  Am.  St.  Rep.  705. 

etc.,  R.  Co.,  76  Minn.   334,  79  N.   W.  =3  Louisville,  etc.,  R.  Co.  v.  Postal  Tel. 

315;   Louisville,  etc.,  R.  Co.  v.  Postal  Cable  Co.,  68  Miss.  806,  10  So.  74. 


§    151]  ON  RAILROAD   RIGHT   OF   WAY.  141 

]iany.-^  In  Mississippi,  whenever  a  telegraph  company  secures  thi"^ 
right  it  becomes  the  duty  of  the  railroad  to  receive  and  transport  sucli 
material,  construction  cars,  etc.,  as  is  necessary  in  constructing  the 
line,  and  to  distribute  the  material  along  the  road  as  the  telegraph 
company  may  direct  "upon  such  teiTns  and  conditions  as  may  be  rea- 
sonable and  just."  ^^  Wlien  the  right  is  acquired  under  a  federal 
grant,  the  company  must  file  its  written  acceptance  with  the  post- 
master-general "of  the  restrictions  and  obligations  required"  by  the 
statute.2« 

§  151.     Interest  acquired  by  telegraph  companies. 

Telegraph  companies  which  are  constructed  along  and  upon  the 
right  of  way  of  a  railroad  company  acquire  no  title  or  interest  in  the 
easement.-'^  The  fee  still  remains  in  the  original  landowner  or  the 
railroad  company,  whichever  it  may  be ;  and  the  telegraph  companies 
have  only  the  right  to  erect  their  poles  upon  the  easement,  and  the 
right  of  ingress  and  egress  thereon  for  the  purpose  of  keeping  up  the 
lines.  It  is  incumbent  upon  the  telegraph  company  to  construct  its 
]ioles  and  wires  so  as  not  to  interfere  with  the  moving  trains,  and 

-*  Postal   Tel.    Cable   Co.    v.    Norfolk,  souri.    The  company  owning  the  bridge, 

etc.,  R.  Co.,    88  Va.  920,  14  S.  E.  803;  claiming    that    the    condemnation    pro- 

Xew  York  City,  etc.,  R.  Co.  v.  Central  ceeding  was  Avithout  authority  of  law. 

U.  Tel.  Co.,  21  Hun   (N.  Y.)   261.  brought  an  action  to  enjoin  the  same. 

^'Laws  Miss.   (1890),  ch.  63,  p.  72.  and  to  prevent  any   interference   with 

==' Chicago,  etc.,  Co.  v.     Pacific  Mut.  the  bridge.     Held,  that,  before  the  tel- 

Tel.  Co.,  16  Am.  &  Eng.  Corp.  Cas.  271.  egraph  company  can  construct  its  line? 

In  this  case  it  was  held:   A  telegraph  at  the  point  named,  it  must  file  with 

company  in  the  exercise  of  eminent  do-  the    postmaster-general    a    written    ac- 

main,   instituted  a   proceeding  to  con-  ceptance  of  the  restrictions  and  obliga- 

demn   and   appropriate   so   much   of   a  tions  imposed  by  congress  in  an    "Act 

bridge   as  was  necessary  to  support  a  to  aid  in  the  construction  of  telegraph 

line  of  magnetic  telegraph  proposed  to  lines,  and  to  secure  to  the  government 

be  built,  and  for  the  construction,  main-  the  use  of  the   same   for   postal,   mili- 

tenance  and  operation  of  the  same.  The  tary,  and  other  purposes." 
bridge  was  built  in  pursuance  of  state  =' Postal  Tel.  Cable  Co.  v.  Louisiana 

and  national  legislation,  and  spans  the  Western  R.  Co.,  49  La.  Ann.   1270,  22 

Missouri  river   at     Atchison,     Kansas,  So.  219;  Mobile,  etc.,  R.  Co.  v.  Postal 

where  the  river  is  navigable,  and  where  Tel.  Co.,  24  So.  408. 
it  divides  the  states  of  Kansas  and  Mis- 


142  TELEGRAPH  AND   TELEPHONE  COMPANIES.  [<^    151 

not  to  permit  its  lines  to  become  dangerous  to  transportation  along  tte 
road.  The  first  duty  which  a  railroad  company  owes  to  the  public 
is  to  keep  its  roadbed  in  proper  condition  for  the  safety  of  the  pas- 
sengers and  goods  during  transportation;  and,  in  order  to  do  this, 
the  railroad  company  may  make  such  disposition  of  its  roadbed  as 
may  be  necessary  for  the  maintenance  of  same :  should  it  become  nec- 
essary to  remove  the  poles  for  this  purpose,  it  may  do  so  without  be- 
coming liable  to  the  telegraph  company,  unless  the  same  is  done  negli- 
gently, carelessly  or  unnecessarily.  In  many  instances,  the  railroad 
may  and  does  widen  its  roadbed  for  the  purpose  of  laying  a  side  track 
or  a  double  track ;  when  it  does  it  may  remove  the  poles  of  these  com- 
panies or  give  them  reasonable  time  or  proper  notice  to  do  the  same 
themselves  at  their  own  expense.  We  mention  these  facts  to  show 
that  a  railroad  company  does  not  lose  any  interest  or  control  over  the 
easement  but  may  make  any  disposition  or  use  of  it  necessary  for  the 
carrying  on  of  its  business.^® 

§  152.     By  condemnation. 

When  a  telegraph  company  has  failed  to  acquire  by  an  agreement 
with  the  railroad  company  an  easement  over  the  latter's  right  of  way, 
the  next  and  last  step  left  to  such  company  is  under  a  condemnation 
proceeding.  It  has  long  been  settled  that  property  already  devoted 
to  public  use  may  afterwards  be  condemned  for  another  and  different 
public  use  under  authority  from  the  state ;  ^^  and  as  lands,  whereon 

=^  Postal  Tel.  Cable  Co.  v.  Louisiana  Rep.  802,  48  Pac.  465;  St.  Louis,  etc.. 

Western  R.  Co.,  49  La.  Ann.  1270,  22  R.  Co.  v.  Hannibal  U.  Depot  Co.,  125 

So.  219;  Mobile,  etc.,  R.  Co.  v.  Postal  Mo.  82,  25  S.  W.  483;  Kansas  City  v. 

Tel.  Co.,  24  So.  408.  Marsh  Oil  Co.,   140  Mo.  458,  41  S.  W. 

^Kansas,   etc.,   R.   C.   v.   Northwest-  943;   Kansas  City,  etc..  Bell  R.  Co.  v. 

em,  etc.,,R.   Co.,   161   Mo.   288,   61    S.  Kansas  City,  etc.,  R.  Co.,  118  Mo.  599, 

W.  684,  84  Am.  St.  Rep.  717,  51  L.  R.  24   S.  W.  478;   Twelfth  Market  Street 

A.  36;  Butte,  etc.,  R.  Co.  v.  Montana,  Co.  v.   Philadelphia,   etc.,   R.   Co.,    142 

etc.,  R.  Co.,  16  Mont.  504,  50  Am.  St.  Pa.  St.  589,  21  Atl.  902;  The  Sunder- 

Rep.  508,  41  Pac.  232,  SI  L.  R.  A.  298;  land   Bridge,    122   Mass.   459;      Enfield 

Chicago,  etc.,  R.  Co.  v.  Stockweather,  Toll   Bridge   Co.   v.   Hartford,   etc.,   R. 

97  Iowa  159,  59  Am.  St.  Rep.  404,  66  Co..  17  Conn.  40,  42  Am.  Dec.  716. 

N.   W.   87;    Little  Nestucco  Road   Co.  In  Central   Bridge   Corp.  v.   City  of 

V.  Tillamook  Co.,  31  Or.  1,  65  Am.  St.  Lowell,  4   Gray   474,  Bigelow,  J.,  used 


§  152] 


ON  EAILRO^ID  EIGHT   OF  WAY. 


143 


telegi-aph  lines  are  to  be  constructed  are  granted  to  companies  for 
public  enterprises,  it  necessarily  follows,  therefore,  that  these  com- 
panies may  condemn  a  part  of  the  right  of  way  which  has  already 
been  granted  to  a  railroad  company.^^  While  this  is  the  general  rule, 
yet  it  is  a  matter  to  be  closely  considered ;  and  in  no  case  should  this 
right  be  exercised  without  an  express"^  legislative  authority  or  one 


tlie  following  language  concerning  the 
subject  Jn  question :  "Nor  is  the  prin- 
ciple thus  recognized  any  violation  of 
justice  or  sound  policy,  nor  does  it  in 
any  degree  tend  to  impair  the  obliga- 
tion or  infringe  upon  the  sancity  of 
contracts.  It  rests  on  the  basis  that 
public  convenience  and  necessity  are  of 
paramount  importance  and  obligation, 
to  which,  when  duly  ascertained  and 
declared  by  the  sovereign  authority,  all 
minor  considerations  and  private  rights 
and  interests  must  be  held,  in  a  meas- 
ure and  to  a  certain  extent,  subordi- 
nate. By  the  grant  of  a  franchise  to 
individuals  for  one  public  .purpose,  the 
legislatures  do  not  forever  debar  them- 
selves from  giving  to  others  new  and 
paramount  rights  and  privileges  when 
required  by  public  exigencies,  although 
it  may  be  necessary,  in  the  exercise  of 
such  rights  and  privileges,  to  take  and 
appropriate  a  franchise  previously 
granted.  If  such  were  the  rule,  great 
public  improvements,  rendered  necessa- 
ry by  the  increasing  wants  of  society 
in  the  development  of  civilization  and 
the  progress  of  the  arts  might  be  pre- 
vented by  legislative  grants  which  were 
wise  and  expedient  in  their  time,  but 
which  the  public  necessities  have  out- 
grown and  rendered  obsolete.  The  only 
true  rule  of  policy,  as  well  as  of  law, 
is,  that  a  grant  for  ont  public  purpose 
must  yield  to  another  more  urgent  and 
important,     and  this     can  be     effected 


without  any  infringement  on  the  con- 
stitutional rights  of  the  subject.  If  in 
such  cases  suitable  and  adequate  pro- 
vision is  made  by  the  legislature  for 
the  compensation  of  those  whose  prop- 
erty or  franchise  is  injured  or  taken 
away,  there  is  no  violation  of  public 
faith  or  private  rights.  The  obligation 
of  the  contract  created  by  the  original 
charter  is  therebj'  recognized." 

»» Postal  Tel.  Cable  Co.  v.  Oregon 
Short  Line  E.  Co.,  23  Utah  474,  65  Pac. 
735,  90  Am.  St.  Rep.  705;  Baltimore, 
etc.,  R.  Co.  v.  Board  of  Commerce,  156 
Ind.  260,  58  N.  E.  837,  59  N.  E.  856; 
Gold  V.  Pittsburg,  etc.,  R.  Co.,  153  Ind. 
232,  53  N.  E.  285 ;  Steele  v.  Epsom,  142 
Ind.  397,  41  X.  E.  822;  Southern  Pac. 
R.  Co.  V.  Southern  Cal.  R.  Co.,  11  Cal. 
222,  43  Pac.  602;  Southwestern  Tel., 
etc.,  Co.  V.  Gulf,  etc.,  R.  C,  52  S.  W. 
106;  St.  Louis,  etc.,  R.  Co.  v.  Postal 
Tel.  Co.,  173  111.  521,  51  N.  E.  382. 

"  Little  Nestucco  R.  Co.  v.  Tillamonk 
County,  31  Oregon  1,  48  Pac.  465,  65 
Am.  St.  Rep.  802. 

On  this  subject  Chief  Justice  Shaw 
said:  "It  must  appear  that  the  govern- 
ment intends  to  exercise  this  high  sov- 
vereign  right  by  clear  and  expressed 
terms  or  by  necessary  implication,  leav- 
ing no  doubt  or  imcertainty  respecting 
such  intent.  It  must  also  appear  by 
the  act  that  they  recognize  the  right  of 
private  property,  and  mean  to  respect 
it; and  under  our  constitution,  the  act 
conferring  the  power  must  be  acompan- 


144 


TELEGRAPH  AND  TELEPHONE   COMPANIES. 


[§  152 


necessarily  implied.^^  In  most  of  the  states,  if  not  in  all,  there  are 
special  statutes  applicable  to  such  condemnations ;  and  where  this  is 
not  the  case,  the  right  is  exercised  under  the  eminent  domain  stat- 
utes. In  order  for  the  reader  to  familiarize  himself  with  this  subject, 
and  to  have  a  better  knowledge  of  the  procedure  within  his  immediate 
jurisdiction,  it  is  necessary  to  consult  the  statutes  of  his  own  state 
and  the  cases  arising  thereunder.^^ 


ied  by  just  and  constitutional  provis- 
ions for  full  compensation  to  be  made 
to  the  owner.  If  the  government  au- 
thorizes.the  taking  of  property  for  any 
use  other  than  a  public  one,  or  fails  to 
make  provision  for  a  compensation,  the 
act  is  simply  void;  no  right  of  taking 
as  against  the  owner  is  conferred;  and 
he  has  the  same  rights  and  remedies 
against  ;i  party  acting  under  such  au- 
thority as  if  it  had  not  existed.  In 
general,  therefore,  Avhen  any  act  seems 
to  confer  an  authority  on  another  to 
take  property,  and  the  grant  is  not 
clear  and  explicit,  and  no  compensation 
is  provided  by  it  for  the  owner  of  party 
whose  rights  are  injuriously  affected, 
the  law  will  conclude  that  it  was  not 
the  intent  of  the  legislature  to  exer- 
cise the  right  of  eminent  domain,  but 
simply  to  confer  a  right  to  do  the  act, 
or  exercise  the  power  given,  on  first 
obtaining  the  consent  of  those  thus  af- 
fected." Boston,  etc.,  R.  R.  v.  Salem, 
etc.,  R.  R.,  2  Gray,  1,  36.  See,  also. 
Fort  Wayne  v.  Lake  Shore,  etc.,  R.  Co., 
132  Ind.  558,  32  N.  E.  215,  13  L.  R. 
A.  367n,  32  Am.  St.  Rep.  277 ;  Vander- 
lip  V.  Grand  Rapids,  16  Am.  St.  Rep. 
613;  Davis  v.  Meyer,  14  N.  Y.  (4  Ker- 
man)    506,  67  Am.  Dec.   186. 

« Louisville,  etc.,  R.  Co.  v.  Whotley 
County,  95  Ky.  215,  24  S.  W.  604,  44 
Am.  St.  Rep.  220;  Cleveland,  etc.,  R. 
Co.  v.  Speer,  56  Pa.  St.  325,  94  Am. 
Dec.  84. 


"'^  United  States. — Oregon  Shoi-t  Line 
R.  Co.  V.  Postal  Tel.  Cable  Co.,  49  C. 
C.  A.  663,  111  Fed.  842,  affirming  104 
Fed.  623 ;  Postal  Tel.  Cable  Co.  v.  Ore- 
gon Short  Line  R.  Co.,  114  Fed.  787. 

Alabama. — Mobile,  etc.,  R.  Co.  v. 
Postal  Tel.  Cable  Co.,  120  Ala.  21,  24 
So.  408.  See,  also.  New  Orleans,  etc., 
R.  Co.  V.  Southern,  etc.,  Tel.  Co.,  53 
Ala.  211. 

Arkansas. — St.  Louis,  etc.,  R.  Co.  v. 
Southwestern  Tel.,  etc.,  Co.,  121  Fed. 
278. 

Colorado. — Union  Pac.  R.  Co.  v. 
Colorado  Postal  Tel.  Cable  Co.,  30 
Colo.  133,  69  Pac.  564. 

Georgia. — Savannah,  etc.,  R.  Co.  v. 
Postal  Tel.  Cable  Co.,  112  Ga.  941,  38 
S.  E.  353,  115  Ga.  554,  12  S.  E.  1; 
West.  U.  Tel.  Co.  v.  American  U.  Tel. 
Co.,  65  Ga.  160,  38  Am.  Rep.  781. 

Illinois. — St.  Louis,  etc.,  R.  Co.  v. 
Postal  Tel.  Co.,  173  111.  508,  51  N.  E. 
382. 

Indiana.— Vostal  Tel.  Cable  Co.,  v 
Chicago,  etc.,  R.  Co.,  30  Ind.  App 
652. 

Louisiana. — Postal  Tel.  Cable  Co.  v 
Morgan's  Louisiana,  etc.,  R.  Co.,  49 
La.  Ann.  58,  21  So.  183;  Postal  Tel 
Cable  Co.  v.  Louisiana  Western  R.  Co. 
49  La.  Ann.  1270,  22  So.  219;  South 
western  Tel.  Co.  v.  Kansas  City,  etc. 
R.  Co.,  109  La.  892. 

New  Mexico. — Union  Trust  Co.  v 
Atchison,  etc.,  R.  Co.,  8  N.  Mex.  327 
43  Pac.  701. 

Mississippi. — Mobile,  etc.,  R.   Co.  v 


§  153] 


ON   RAILROAD   RIGHT   OF   WAY. 


145 


§  153.     Exception  to  rule. 

There  are  some  exceptions  to  the  general  rule  that  land  can  be  con- 
demned for  a  public  use  which  is  already  being  used  for  a  public  use ; 
for  instance,  property  cannot  be  taken  from  one  corporation  by  an- 
other to  be  used  for  the  same  purpose  and  in  the  same  manner  for 
which  it  was  used  by  the  corporation  which  first  appropriated  it  to 
such  use  and  purpose.^^  In  other  words,  every  corporation  holds 
property  subject  to  the  rights  of  the  state  to  take  it  for  another  pub- 
lic use,  whenever,  in  the  discretion  of  the  legislature  the  exercise  re- 
quires the  use  for  such  other  purpose :  This  is  true  even  as  to  the 
franchise  itself  of  any  corporation;  "^  but,  in  order  for  one  corpora- 
tion to  take  the  lands  or  franchises  of  another  which  is  in  actual  use 
by  the  latter,  the  same  must  have  been  authorized  by  the  legislature.^® 
A  telegraph  company  would  not  deprive  the  railroad  of  the  use  of  its 
right  of  way  or  any  part  thereof :  So  that  part  which  is  not  essential 
to  the  employment  of  its  franchise  and  property,  or  which  is  not  in 


Postal  Tel.  Cable  Co.,  76  Miss.  731,  2G 
So.  370,  45  L.  R.  A.  223. 

North  Carolina. — Postal  Tel.  Cable 
Co.  V.  Southern  R.  Co.,  90  Fed.  31. 

Ohio.— Vostal  Tel.  Cable  Co.  v. 
Cleveland,  etc.,  R.  Co.,  94  Fed.  234. 

South  Carolina.  —  South  Carolina, 
etc.,  R.  Co.  V.  American  Tel.,  etc.,  Co., 
65  S.  Car.  459,  43  S.  E.  970. 

Tennessee. — Mobile,  etc.,  R.  Co.  v. 
Postal  Tel.  Cable  Co.,  101  Tenn.,  62, 
46  S.  W.  571,  41  L.  R.  A.  403. 

Texas.— ¥t.  Worth,  etc.,  R.  Co.  v. 
Southwestern  Tel.,  etc.,  Co.,  96  Texas, 
160,  71  S.  \V.  270,  60  L.  R.  A.  145; 
Houston,  etc.,  R.  Co.  v.  Postal  Tel.  Ca- 
ble Co.,  18  Tex.  Civ.  App.  502;  Gulf, 
etc.,  R.  Co.  V.  Southwestern  Tel.  etc., 
Co.,  18  Tex.  Civ.  App.  500. 

Utah.— Fostal  Tel.  Cable  Co.  v.  Ore- 
gon Short  Line  R.  Co.,  23  Utah  476,  65 
Pac.  735,  90  Am.  St.  Rep.  705. 

Virginia. — Postal  Tol.  Cable  Co.  v. 
Farmville,  etc.,  R.  Co..  0(i  Va.  601.  32 
S.  E.  468. 


^  Kansas,  etc.,  R.  Co.  v.  Northwest- 
ern, etc.,  Co.,  161  Mo.  288,  61  S.  W. 
684,  84  Am.  St.  Rep.  717,  51  L.  R.  A. 
936;  Lewis  on  Eminent  Domain,  §  276. 

'^  Kansas,  etc.,  R.  Co.  v.  Northwest- 
ern, etc.,  Co.,  161  Mo.  288,  61  S.  W. 
684,  84  Am.  St.  Rep.  717,  51  L.  R.  A. 
930;  Twelfth  Market  St.  Co.  v.  Phila- 
delphia, etc.,  R.  Co.,  142  Pa.  St.  589, 
21  Atl.  009;  The  Sundeland  Bridge, 
122  Mass.  459;  In  re  Opinion  of  the 
Justices,  66  N.  H.  629,  33  Atl.  1076; 
New  York  Central,  etc.,  R.  Co.  v.  Met- 
ropolitan Gas  Light  Co.,  03  N.  Y.  326 ; 
In  re  Bellona  Co.,  3  Bland  442;  Enfield 
Toll  Brig.  Co.  V.  Hartford,  etc.,  R.  Co., 
17  Conn.  40,  42  Am.  Dec.  716;  Boston, 
etc.,  Co.  V.  Salem,  etc.,  R.  Co.,  2  Gray 
1. 

^Brette,  etc.,  R.  Co.  v.  Montana, 
etc.,  R.  Co.,  16  Mont.  504,  50  Am.  St. 
Rep.  508,  31  L.  R.  A.  298.  See,  also, 
notes  31  and  32,  for  further  reference. 


T.'&  T.— 10 


146 


TELEGRAPH  AS^D   TELEPHONE   COMPANIES, 


[^  153 


actual  usc,^^  may  be  condemned  for  telegraph  lines ;  provided,  they 
are  so  constructed  as  not  to  interfere  with  the  free  exercise  of  the 
former's  franchise  or  with  the  actual  operation  of  the  road.^'^ 
A  somewhat  different  rule  has  been  held  in  a  few  cases, 
where  it  was  emphasized  that  the  possible  future  needs  of  the 
railroad  company  must  be  given  full  consideration  in  deter- 
mining whether  any  portion  of  its  right  of  way  may  be 
taken  from  it  for  a  telegraph  line.^^  A  railroad  company  ac- 
quires the  right  to  use  the  right  of  way  for  such  purposes,  and  only 
such,  as  may  be  necessary  to  carry  on  the  business  for  which  it  was 
incorporated.  It  cannot  carry  on  any  other  enterprise  or  business  of 
whatever  nature  upon  its  right  of  way,  except  that  which  is  necessary 
to  accomplish  the  business  of  railroading;  but  when  it  does  become 
necessary  to  use  all  or  a  greater  part  of  its  easement,  and  this  cannot 
be  done  while  the  telegTaph  companies  remain  on  the  right  of  way, 


^Mobile,  etc.,  R.  Co.  v.  Postal  Tel. 
Cable  Co.,  24  So.  408. 

^  These  foregoing  rules  were  well 
stated  by  Folger,  J.,  in  Matter  of  City 
of  Buffalo,  68  N.  Y.  167,  175,  as  fol- 
lows: "In  determining  whether  a 
power  generally  given  is  meant  to  have 
operation  upon  lands  already  devoted 
by  legislative  authority  to  a  public 
purpose,  it  is  proper  to  consider  the  na- 
ture of  the  prior  public  works,  the 
public  use  to  which  it  is  applied,  the 
extent  to  which  that  use  would  be  im- 
paired or  diminished  by  the  taking  of 
such  part  of  the  land  as  may  be  de- 
manded for  the  subsequent  public  use. 
If  both  uses  may  not  stand  together, 
with  some  tolerable  interference  which 
may  be  compensated  for  by  damages 
paid,  if  the  latter  use,  when  exercised, 
must  supersede  the  former,  it  is  not 
to  be  implied  from  a  general  power 
given,  without  having  In  view  a  then 
existing  -  and  a  particular  need  there- 
for, that  the  legislature  meant  to  sub- 
ject lands  devoted  to  a  public  use  al- 
ready in  exercise   to  one   which   might 


thereafter  arise.  A  legislative  intent 
that  there  should  be  such  an  effect 
will  not  be  inferred  from  a  gift  or 
power  in  general  terms.  To  defeat  the 
attainment  of  an  important  public 
purpose  to  which  lands  have  already 
been  subjected,  the  legislative  intent 
must  unequivocally  appear.  If  an  im- 
plication is  to  be  relied  upon,  it  must 
appear  from  the  face  of  the  enactment, 
or  from  the  application  of  it  to  the 
particular  subject-matter  of  it,  so  that 
by  reasonable  intendment  some  espe- 
cial object  sought  to  be  attained  by 
the  exercise  of  the  power  granted  could 
not  be  reached  in  any  other  place  or 
manner."  Postal  Tel.  Co.  v.  Oregon, 
etc.,  R.  Co.,  23  Utah  474,  65  Pac.  735, 
90  Am.  St.  Rep.  705;  Southern  Pac. 
R.  Co.  V.  Southern  Cal.  R.  Co.,  Ill 
Cal.  231,  43  Pac.  602. 

»MVest.  U.  Tel.  Co.  v.  Pennsylvania 
R.  Co.,  59  C.  C.  A.  113,  123  Fed.  33, 
120  Fed.  362.  See,  also,  St.  Louis,  etc., 
R.  Co.  v.  Southwestern  Tel.,  etc.,  58  C. 
C.  A.  193,  121  Fed.  278. 


§    155]  ON   RAILROAD   RIGHT   OF   WAY.  147 

the  latter  must  give  way  to  the  railroad  company,  to  the  extent  of 
moving  its  lines  off  of  the  right  of  way.  This  fact  seems  to  have  been 
lost  sight  of  in  the  case  cited. 

§  154.     Same  continued — cannot  be  defeated  by  claiming  it  should 
be  on  other  lands. 

Such  a  condemnation  camiot  be  defeated  by  showing  that  a  right  of 
way  for  the  telegraph  line  may  be  secured  over  a  public  highway  near 
or  adjacent  to  the  railroad,  or  over  other  property.^*^  A  railroad  com- 
pany can  have  no  greater  claim  to  its  right  of  way  than  the  public 
can  have  to  the  public  highways,  or  an  individual  to  his  private  prop- 
erty. So,  to  allow  such  condemnation  to  be  defeated  by  a  railroad 
company  on  this  ground  would  give  to  the  railroad  a  greater  right 
than  is  given  to  individuals;  which  would  virtually  take  away  from 
telegraph  companies  the  power  of  exercising  the  right  of  eminent  do- 
main. If  this  right  should  be  defeated  by  either  of  these  parties  on 
such  showing  it  should  be  by  the  two  latter;  since  there  is  no  ques- 
tion but  that  there  would  be  less  danger  to  the  public  if  these  lines 
were  along  the  right  of  way  of  the  railroads :  and  surely,  during  this 
day  and  time,  it  would  be  much  more  convenient  and  less  expensive 
to  these  companies ;  and,  at  the  same  time,  the  railroad  companies 
would  not  be  incommoded  in  the  least  in  their  business  affairs.  Fur- 
thermore, the  expenses  of  the  railroad  company  might  be  greatly  re- 
duced on  account  of  the  competition  of  the  many  lines  which  would 
likely  be  on  the  right  of  way. 

§  155.     Foreign  telegraph  companies — right  to  condemn. 

A  corporation  can  have  no  legal  existence  outside  of  the  state  creat- 
ing it;  therefore,  it  can  transact  business  within  the  scope  of  its 
powers  in  other  sovereignties  only  upon  such  terms  and  conditions  as 
such  sovereig-nties  may  provide:  ^^  and  while,  under  the  general  rules 

*"  Union  Pac.  K.  Co.  v.  Colorado  Pos-  A.   145.     See,  also,   St.  Louis,  etc.,  R. 

tol  Tel.  Cable  Co.,  30   Colo.    133;    Sa-  Co.  v.  Southwestern  Tel.,  etc..  Co.    (58 

vannah,  etc.,  R.  Co.  v.  Postal  Tel.  Ca-  C.  C.  A.  198,)   121  Fed.  278. 
ble  Co.,  115  Ga.  554,  42  S.  E.  1 ;   Ft.  "Granger's,     etc.,  Insurance  Co.     v. 

Worth,     etc.,  R.  Co.  v.     Southwestern  Kanipov.  73  Ala.  325. 
Tel.,  etc.,  Co.,  71  S.  \y.  270.  60  L.  R. 


148 


TELEGKAPK   AND    TELEPPIONE    COMPANIES. 


[§155 


of  comity  a  corporation  organized  in  one  state  may  be  permitted  to 
transact  business  in  other  states/-  yet  the  power  of  eminent  domain, 
gi'anted  to  a  corporation  of  one  state,  is  not  such  a  privilege  as  will  be 
extended  by  comity  alone  to  the  corporation  in  its  transactions  in  an- 
other state.* ^  Therefore,  this  being  the  rule  applicable  to  corpora- 
tions in  general  it  follows  that  a  foreign  telegraph  company  has  no 
power  under  the  charter;  nor  is  it  permitted  by,  the  rule  of  comity 
alone  to  exercise  the  right  of  eminent  domain  beyond  the  state  of  its 
creation. ^^  A  state  may  confer  upon  a  foreign  telegraph  company  the 
right  of  eminent  domain  *^  by  an  express  grant;  *^  and  sometimes  the 
right  passes  under  a  statutory  grant  of  power  to  corporations  gen- 
erally: *"  thus,  where  a  statute  provides  that  a  foreign  telegraph  com- 
pany may  exercise  the  right  of  eminent  domain  as  a  quasi-successor 
of  another  company  to  which  it  was  originally  granted.*^  So  also, 
such  a  grant  may  sometimes  be  implied.  Thus,  it  was  held  that  the 
right  which  had  been  granted  to  a  domestic  corporation  would  not 


"Empire  Mills  v.  Alston  Grocery 
Co.,  33  Am.  &  Eng.  Corp.  Cas.  15;  Can- 
adian Pao.  E.  Co.  V.  West.  U.  Tel.  Co., 
17  Supreme  Court  of  Canada  151; 
Bank  of  xUigusta  v.  Earle,  13  Pet.  (U. 
S.)  519;  Atchison,  etc.,  R.  Co.  v. 
Fletcher,  35  Kan.  236,  10  Pac.  596; 
Dodge  V.  Council  Bluffs,  57  Iowa  560, 
10  N.  W.  900 :  Richwald  v.  Commercial 
Hotel  Co.,  106  111.  439;  Miller  v.  Ewer. 
27  Me.  509;  Christian  Union  v.  Yount, 
101  U.  S.  352:  Newberg  Petroleum  Co. 
V.  Weare,  27  Ohio  St.  343;  William  v. 
Creswell,  51  :Miss.  817;  Baltimore,  etc.. 
Pv.  Co.  V.  Glenn,  28  Md.  287;  Blair  v. 
Perpetual  Ins.  Co.,  10  Mo.  559;  Ohio 
Life  Ins.,  etc.,  Co.  v.  Merchants  Ins., 
etc.,  Co..  11  Humph.  (Tenn.)  1; 
Thompson  v.  Waters,  25  Mich.  214; 
Merrick  v.  Van  Sautvoord,  34  N.  Y. 
208.  The  same  may  be  implied  unless 
there  is  an  affirmative  refusal.  Col- 
well  V.  Colorado  Springs  Co.,  100  U. 
S.  55,  3  Colo.  82;  Christian  Union  v. 
Yount,  101  U.  S.  352;  Richwald  v. 
Commercial     Hotel     Co.,  106  111.     439. 


See  note  to  Cone,  etc.,  Co.  v.  Poole  (S. 
C),  24  L.  R.  A.  289. 

*«  Middle  Brig.  Co.  v.  Marks,  26  Me. 
326;  State  v.  Boston,  etc.,  R.  Co.,  25 
Vt.  433.  Compare  Baltimore,  etc.,  R. 
Co.  V.  P.  W.  &  Ky.  R.  Co.,  17  W.  Va. 
812. 

"  Postal  Tel.  Cable  v.  Cleveland,  etc., 
R.  Co.,  94  Fed.  234;  St.  Louis,  etc.,  R. 
Co.  V.  Soiithwestern  Tel.,  etc.,  Co.,  (58 
C.  C.  A.  198)    121  Fed.  278. 

^^  Lewis  on  Eminent  Domain  (1888). 
§  242;  State  v.  Sherman,  22  Ohio  St. 
434;  Morris  Canal,  etc.,  Co.  v.  Town- 
send,  24  Barb.  (N.  Y.)  658;  New 
York,  etc.,  R.  Co.  v.  Young,  33  Pa.  St. 
175;  Dodge  v.  Council  Bluffs,  57  Iowa 
560,  10  N.  W.  886;  Abbott  v.  N.  Y., 
etc.,  R.  Co.,  145  Mass.  450,  15  N.  E. 
91;  Gray  v.  St.  Louis,  etc.,  R.  Co.,  81 
Mo.  126." 

*«Gray  v.  St.  Louis,  etc.,  R.  Co.,  81 
Mo.  126. 

"Re  Marks,  6  N.  Y.  Sup.  105. 

« Abbott  V.  X.  Y..  etc.,  R.  Co.,  145 
Mass.  450,   15   N.   E.  91. 


•^    156]  ON  EAILROAD   EIGHT   OF  WAY.  149 

pass  to  a  foreign  company  which  hy  deed  succeeds  to  its  rights  and 
powers  without  the  legislative  consent:  yet,  if  for  twenty  years,  the 
state  had  dealt  with  the  company  on  the  assumption  that  it  had  suc- 
ceeded to  all  the  rights  of  its  predecessor,  had  advanced  it  a  large  sum 
of  money  and  had  allowed  it  to  mortgage  the  road  and  sell  bonds  in 
the  market,  a  presumption  of  the  assent  of  the  legislature  would  pre- 
vail.-*^ 

§  156.     Same  continued — consolidation — agency. 

It  seems  not  an  unusual  thing  for  large  telegraph  and  telephone 
companies  to  utilize  small  companies  in  order  to  carry  out  their  busi- 
ness. ^^  A  telegraph  company  resulting  from  the  consolidation  of 
companies  created  by  different  states  becomes  a  domestic  company 
in  each  of  them ;  and  the  powers  which  each  of  its  constituents  were 
authorized  to  exercise  in  the  particular  locality  descends  to  it.  So,  if 
its  local  predecessor  has  the  right  of  eminent  domain  the  consolidated 
company  will  not  be  barred  from  exercising  it,  because  it  consists  in 
part  of  a  foreign  company. ^^  Some  of  the  courts  have  gone  further, 
and  hold  that  it  is  not  necessary  that  there  should  be  a  consolidation, 
but  that  it  is  subordinate  to  the  foreign  company,  and  is  only  to  assist 
it  in  carrying  out  its  object.^-  In  other  words,  it  may  be  nothing 
more  to  the  foreign  company  than  a  mere  agent ;  ^^  yet,  however,  this 
rule  has  not  been  followed  by  all  the  courts.  Thus,  it  was  held,  that 
such  company  will  not  be  permitted  to  evade  this  provision,  and  do 
indirectly  what  it  may  not  do  directly  by  acquiring  a  right  of  way, 
through  the  agency  of  a  domestic  company. ''* 

*»  Abbott  V.  N.  Y.,  etc.,  R.   Co.,   145  Co.,  30  Colo.  133;     Postal     Tel.  Cable 

Mass.  450,  15  N.  E.  91.  Co.   v.   Oregon   Short  Line  R.   Co.,   23 

""  Postal  Tel.  Cable  Co.     v.     Oregon  Utah  474,  65  Pac.  735,  90  Am.  St.  Rep. 

Short  Line   R.    Co.,   23   Utah   474,   65  705;    Day  v.   Postal  Tel.   Co.,   66  Md. 

Pac.  735,  90  Am.  St.  Rep.  705.  354. 

=' Toledo,  etc.,  R.  Co.  v.  Dunlap,  47  ""Postal     Tel.  Cable  Co.  v.     Oregon 

Mich.   456,    11   N.   W.   271;    Abbott  v.  Short   Line   R.    Co.,   23   Utah   474,    65 

N.  Y.,  etc.,  R.  Co.,  145  Mass.  450,  15  Pac.   735,   90  Am.   St.  Rep.   705. 

N.  E.  91;  Trcster  v.  Missouri   Pac.  R.  "^  State  v.  Scott,  22  Neb.  628,  36  N. 

Co.,  36  N.  W.  502.  W.    121 ;    Trester  v.   Missouri   Pac.   R. 

"Postal  Tel.  Cable     Co.     v.     Oregon  Co.,  23  Neb.  242,  36  N.  \Y.  502;  Koe- 

Short  Line  R.  Co.,  104  Fed.  623,  affirm-  ing  v.    Chicago,   etc.,   R.   Co.,   27   Neb. 

ing    (CCA.)    Ill    Fed.   842;    Union  099,   43   X.   W.   423. 

Pac.  R.   Co.  V.   Colorado  Postal   Cable  , 


150  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§    157 

§  157.     Same  continued — general  and  special  laws. 

While  the  above  rule  is  the  general  law  applicable  to  foreign  cor- 
porations, exercising  the  right  of  eminent  domain,  without  their  state 
of  incorporation,  yet  the  same  is  applied  to  foreign  telegraph  and  tele- 
phone companies,  seeking  to  carry  on  a  business  in  other  states :  and 
that,  too,  whether  they  are  making  an  effort  to  condemn  the  land 
of  some  private  citizen,  or  the  easement  of  a  public  highway,  or  the 
right  of  way  of  a  railroad  company.  There  may  be  general  statutes 
wherein  they  acquire  the  right  to  exercise  this  power  over  private 
property  and  public  highways,  and  special  statutes  with  reference  to 
the  condemnation  of  the  right  of  way  of  railroad  companies ;  or  they 
may  acquire  the  right  under  both:  but  where  the  right  is  acquired 
under  either  of  the  two  statutes,^^  they  should  resort  to  that  statute 
which  has  particular  reference  to  that  class  of  property  sought  to  be 
condemned. 

§  158.     Must  be  in  good  faith. 

In  order  for  a  telegraph  company  to  be  endowed  with  the  author- 
ity to  condemn  the  right  of  way  of  a  railroad  company,  the  same  must 
be  done  for  itself  as  an  incorporated  concern,  or  as  an  agent  for  an- 
other incorporated  company.  Thus,  it  was  held  that  a  private  person 
could  not  condemn  land  for  a  right  of  way  for  a  private  business  for 
himself  or  for  another ;  but  that  the  proceedings  could  be  maintained 
only  by  one  who  is  in  charge  of  a  public  use,  and  who  intends  to  per- 
form a  public  service :  ^^  although  he  may  exercise  the  right  as  agent 
for  some  telegraph  or  telephone  company ;  but  in  order  to  do  this,  his 
agency  must  be  stated. ^'^  A  person  is  not  in  charge  of  a  public  duty  if 
he  seeks  to  condemn  the  right  of  way  merely  to  sell  the  same  to  a  com- 
pany f^  but  if  the  articles  of  incorporation  of  the  company  seeking  to 
exercise  the  right  discloses  the  fact  that  it  w^as  organized  to  sell  or  oth- 
erwise dispose  of  the  lines  of  the  telegraph  company  which  it  might 

^'  Koeing  v.  Chicago,  etc.,  R.  Co.,  27  70  Pac.  1083,  92  Am.  St.  Rep.   188,  59 

Neb.   699,  43   N.  W.  423.  L.  R.  A.  581. 

'"Beneridge   v.   Lewis,    137   Cal.   619,  =*  Beveridge   v.   Lewis,    137    Cal.   619. 

70    Pac.    1083,    92    Am.    St.    Rep.    188,  70  Pac.   1083,  92  Am.  St.  Rep.  188,  59 

59   L.   R.   A.   581.  L.  R.  A.  581. 

*^Beveridge   v.   Lewis,    137    Cal.    619. 


^    159]  ON   KAILEOAD  RIGHT   OF    WAY.  151 

construct  or  acquire,  and  that  this  fact  was  in  connection  with  other 
evidence  in  the  case — as  that  it  was  a  foreign  corporation,  and  not  its 
honest  intention  to  operate  the  lines  in  question,  except  in  the  inter- 
est of  and  in  connection  with  that  corporation — does  not  establish  in 
law  an  intent  to  take  the  property  for  a  private  use.^"  What  a  public 
use  is,  is  a  question  of  law  to  be  decided  by  the  court,"°  but  when  and 
by  what  companies  the  power  of  eminent  domain  may  be  exercised,  is 
to  be  decided  by  the  legislature.®^ 

§  159.     What  portion  of  right  of  way  may  be  taken. 

Where  the  right  to  condemn  the  right  of  way  of  a  railroad  company 
has  been  conferred  upon  a  telegraph  company ;  the  power  to  select  so 
much  of  the  right  of  way,  as  may  be  necessary  for  the  lines  is  con- 
ferred by  implication,  subject  to  the  limitation  that  its  selection  must 
not  essentially  interfere  with  the  operation  of  the  railroad.^-  When 
the  power  to  condemn  the  right  of  way  ha>  l^een  acquired  by  the  tele- 
graph company,  there  is  generally  very  little  dispute  between  the  two 
companies  as  to  where  the  line  shall  be  constructed ;  provided,  it  is 
not  to  be  so  near  to  the  track  as  to  interfere  with  the  running  of  the 
trains,  and  the  carrying  on  of  its  general  corporate  business.^^     The 

^»  Union     Pac.     R.  Co.  v.     Colorado,  K.    Co.   v.   Postal   Tel.    Cable   Co.,    115 

etc.,   Tel.    Co.,    30    Colo.    133,    69    Pae.  Ga.  554,  12  S.    E.     1.      See,    also,    St. 

564,  97  Am.  St.  Rep.  106;  Postal  Tel.  Louis,  etc.,   R.     Co.     v.   Southwestern 

Cable    Co.    v.    Oregon    Short    Line    R.  Tel.,  etc.,  Co.,    (58  C.  C.  A.   198)    121 

Co.,  23  Utah  474,  65  Pac.  735,  90  Am.  Fed.  278. 
St.  Rep.  705.  «' Postal     Tel.  Cable  Co.  v.     Oregon 

•«>  Judicial  notice  will  be  taken  that  Short  Lino  R.  Co.,  23  Utah  474,  65 
a  public  telegraph  line  is  a  public  im-  Pac.  735,  90  Am.  St.  Rep.  705;  Rail- 
provemont,  for  which  property  may  be  way  v.  Pitty,  57  Ark.  359,  21  S.  W. 
taken  for  a  public  use.  Mobile,  etc.,  R.  884,  20  L.  R.  A.  434n;  Englewood  Con- 
Co.  V.  Postal  Tel.  Cable  Co.,  24  So.  necting  R.  Co.  v.  Chicago,  etc.,  R.  Co., 
408.  117   111.    Gil,   G   N.   E.   684;   O'Hare  v. 

"Chicago,  etc.,  R.  Co.  v.  Morehouse,  Railroad   Co.,    139    111.    151,  28   N.   E. 

112  Wis.  1,  87  N.  W.  849,  56  L.  R.  A.  923;    Stork  v.   Railroad   Co.,   43   Iowa 

240,  88   Am.   St.  Rep.   918,  and  exten-  501 ;    Peorey   v.   Railroad   Co.,    30   Me. 

sive   note  thereunder.  498;      Fall    River    Iron    Works    Co.   v. 

"IMobile,  etc.,  R.   Co.   v.   Postal  Tel.  Oil  Colony,  etc.,  R.   Co.,  5  Allen,  222; 

Cable  Co.,  24  So.  408;   Savannah,  etc.,  Railroad  Co.  v.  Si)eer,  56  Pa.  St.  325, 

R.  Co.  V.  Postal     Tel.     Cable  Co.,   112  04  Am.  Dec.  84;  In  the  matter  of  New 

Ga.  941,  38  S.  E.  353;   Savannah,  etc.,  York  R.  Co.,  46  N.  Y.  546,  7  Am.  Rep. 


152  TEL,£GKAPH  AND   TELEPHONE    COMPANIES.  [§    159 

most  difficult  question  is,  \Vhat  shall  be  the  amount  of  damages  to  be 
a-warded?  And  after  this  has  been  determined,  the  portion  of  the 
right  of  .way  to  be  taken  for  the  telegraph  lines  is  easily  solved. 

§  160.     Nature  of  petition. 

The  nature  of  a  petition  presented  asking  the  condemnation  of  a 
portion  of  the  right  of  way  of  a  railroad  company,  should  be  very 
similar,  in  most  respects,  to  a  petition  filed,  praying  the  condemna- 
tion of  private  property,  or  part  of  a  public  highway  for  telegraph 
and  telephone  companies.  It  will  be  unnecessary  therefore  to  enum- 
erate again  the  essential  parts  of  a  petition ;  yet  some  of  those  parts, 
which  have  been  spoken  of  heretofore,  may  be  somewhat  differently 
alleged  in  a  petition  for  the  condemnation  of  a  right  of  way  of  a  rail- 
road company.  For  instance,  it  is  not  necessary  to  give  as  full  a  de- 
scription of  the  route  of  the  contemplated  company,  or  the  property 
to  be  condemned,  as  that  given  in  a  petition,  praying  for  the  con- 
demnation of  private  property;  because  the  route  has  already  been 
most  thoroughly  described,  when  the  property  was  condemned  for  the 
railroad  company's  right  of  w^ay,  and  of  which  there  are  accessible 
records.^^  If  the  fact  is  alleged  that  the  porperty  is  that  of  a  rail- 
road company,  running  between  certain  termini,  within  certain  coun- 
ties; setting  forth  the  amount  of  ground  needed  for  each  pole;  the 
distance  of  the  poles  from  each  other;  and  the  distance  they  will  be 
from  the  railway  track,  the  way  desired  will  be  sufficiently  de- 
scribed.^^ It  need  not  designate  the  exact  positions  to  be  occupied  by 
the  poles,  nor  the  side  of  the  track  to  be  used,  nor  that  existing  lines 
of  telegraph  will  be  displaced,  nor  the  quantity  or  specific  description 
of  land  to  be  taken. ^'^ 

385;   Kansas,  etc.,  R.     Co.     v.  North-  Lake   Shore,  etc.,  R.   Co.   v.   Pittsburg, 

western,  etc.,  Co.,  161  Mo.  288,  84  Am.  etc.,  R.  Co.,  71  111.  40. 

St.  Rep.  719,  61  S.  W.  684,  5  L.  R.  A.  ^^pogt^l     Tel.   Cable   Co.   v.     Oregon 

936.  Shore  Line   R.   Co.,   23    Utah    474,    65 

«*  Postal     Tel.   Cable  Co.  v.     Oregon  Pac.   735,   90   St.  Rep.   705. 

Short   Line   R.   Co.,   23   Utah   474,    65  ""Mobile,   etc.,   R.    R.    Co.    v.   Postal 

Pac.    735,    90    Am.    St.    Rep.    705.      A  Tel.  Cable  Co.,  24  So.  408. 
railroad  track  is     a     fixed  monument. 


<§    161]  ON  RAILROAD  RIGHT   OF  WAY.  153 

§  161.     Same  continued — necessity  for  taking. 

There  seems  to  be  some  doubt  prevailing  among  the  courts  as  to 
whether  the  petition  should  allege  the  fact  of  the  necessity  of  taking 
the  land  for  the  right  of  way ;  hut  the  weight  of  authority — which  we 
think  to  be  correct — is  that  it  is  not  necessary  to  specifically  allege 
this  fact,  as  the  same  will  be  implied. ^"^  There  are  states  whose  con- 
stitutions expressly  require  this  question  to  be  submitted  to,  and  de- 
termined by  a  jury;  ^^  and  where  this  is  the  case,  there  can  be  no 
doubt  that  it  must  be  done.  There  are  cases,  too,  which,  in  a  general 
way,  have  spoken  of  the  question  as  if  it  were  a  constitutional  one ; 
and  that  because  there  is  no  authority  in  the  legislature  to  take  land 
of  a  private  person  or  corporation,  except  for  public  use,  he  neces- 
sarily must  have  the  right  to  a  judicial  determination  as  to  the  neces- 
sity of  the  taking  in  any  particular  instance.®^  Whether  this  be  true 
or  not,  it  is  not  necessary  in  the  absence  of  a  constitutional  or  statu- 
tory provision  to  that  effect,  to  submit  the  question  to  the  determina- 
tion of  a  jury.  It  may  doubtless  be  referred  for  decision  to  a  court, 
or  to  commissioners  appointed  for  that  purpose  by  the  court,  and 
acting  under  its  supervision  and  subject  to  its  control;  but  if  it  is 
not  presented  for  such  determination  before  the  appointment  of  com- 
missioners, it  will  be  presumed  to  have  been  waived."^*^  When  the 
necessity,  therefore,  exists  for  the  taking — whether  it  be  alleged 
specifically  in  the  petition,  or  whether  it  is  implied  therein — it  is  not 
a  question  whether  there  is  other  land  to  be  had  equally  available ; 
but  the  question  is.  Whether  the  land  sought  is  needed  for  the  con- 
struction of  the  public  work  V^  In  other  words,  it  is  not  necessary  to 
allege  in  the  petition,  that  the  land  sought  to  be  condemned  is  the 
only  available  land  to  be  had  ;  but  the  reason,that  this  particular  land 

•"Mobile,  etc.,  K.  Co.  v.  Postal  Tel.  °»Lecoiil  v.  Patic  Jury,  20  La.  Ann. 

Cable  Co.,  24     So.     408;     Postal  Tel.  308;     New    Orleans,  etc.,    R.     Co.    v. 

Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  Gray,  32  La.  Ann.  471. 

23  Utah  474,  65  Pac.  735,  90  Am.  St.  ™  HejTieman    v.    Blake,    19    Cal.   579. 

Rop.  705;   Lynch  v.  Forbis,   161   Mass.  "Postal   Tel.     Cable     Co.   v.  Oregon 

302,    37    X.    E.    437,   42   Am.    St.    Rep.  Short    Line   R.    Co.,   23    Utah    474,    65 

402,  and  note.  Pac.   735,   90  Am.   St.   Rep.   705;    Mo- 

*»  People  V.   Village  of   Brighton.  20  bile,  etc.,  R.   Co.  v.   Postal  Tel.  Cable 

Mich.    57;    Power's   Appeal,    29    Mich.  Co.,  24   So.   408. 
509. 


154  TELEGRAPH    AND    TELEPHONE    COMPANIES.  [<^    161 

is  sought  to  be  condemned,  is  sufficient  averment  that  it  is  the  most 
available  to  be  had ;  and  this  fact,  of  itself,  is,  in  our  mind,  a  sufficient 
averment  of  the  fact  of  the  necessity  of  the  taking  of  this  laud.  There 
maj  be  other  lands  available,  but  if  the  railroad  company  refuses  a 
bona  fide  offer  to  negotiate  for  the  use  of  land  in  its  right  of  way  for 
a  telegraph  line — and  it  must  be  alleged,  as  has  been  shown,  that  an 
unsuccessful  attempt  to  acquire  this  land  by  agreement  has  been 
made — a  necessity  exists  for  the  taking  of  this  particular  land.'^- 

§  162.     May  condemn  land  in  several  counties  in  one  proceeding. 

Where  the  railroad  traverses  several  counties  in  a  state,  and 
a  telegraph  company  is  seeking  to  condemn  its  right  of  way  for  a  line 
of  wires,  the  same  may  be  done  in  one  proceeding.  While  the  general 
rule  is  that  lands  belonging  to  different  individuals  residing  in  the 
same  county  may  be  condemned  in  one  proceeding,'^ ^  yet  the  rule 
should  receive  a  much  greater  indorsement  where  the  land  belongs  to 
only  one  person,  as  in  the  case  of  a  right  of  way  of  a  railroad  com- 
pany :  since  it  would  be  much  easier  to  serve  notice  on  the  latter,  than 
it  would  be  in  case  there  were  several  owners.  To  our  certain  knowl- 
edge, w'e  cannot  say  whether  the  question  has  been  settled  by  the 
courts  with  respect  to  one  proceeding  settling  the  rights  of  several  dif- 
ferent original  landowners  living  in  different  counties,  for  their  re- 
spective damages  against  the  telegraph  company  for  additional  bur- 
dens to  the  land  on  which  the  railroad  company's  right  of  way  is  laid 
out ;  but  we  are  of  the  opinion  there  would  have  to  be  different  pro- 
ceedings brought  against  the  landowners  in  each  county :  however,  all 
the  landowners  in  one  county  could  be  made  parties  defendant  in  one 
proceeding.  Where  the  proceeding  is  merely  for  the  condemnation  of 
the  right  of  w^ay  of  a  railroad  company,  traversing  several  counties 
within  the  same  state,  there  is  no  question  that  the  same  can  be  done 
by  one  proceeding.  The  damage  which  the  railroad  company  is  en- 
titled to  is  for  the  Avhole  property,  and  the  cause  of  action  arises  in 
all  the  several  counties  as  a  unit.     The  county  line  crossing  the  rail- 


"  Postal     Tel.   Cable   Co.  v.     Oregon  Co.,    35    Am.    &    Eng     Corp.    Cas.    1; 

Short   Line  R.    Co.,   23   Utah    474,   65  Ifoughton  Com.  Council  v.  Huron  Cop- 

Pac.  735,  90  Am.  St.  Rep.  705.  per  Mining  Co..   9   Am.   &  Eng.   Corp 

'=  State  V.    Central  New  Jersey   Tel.  Cas.  315. 


<§>    164]  ON  EAILKOAD  RIGHT   OF   WAY.  155 

road  company's  right  of  way  does  not  destroy  the  singleness  of  its 
useJ'* 

§  163.     Same  continued — constitutional. 

The  statutes  of  some  states  provide  that  telegraph  or  telephone 
companies  desiring  to  exercise  the  right  of  eminent  domain  over  a 
railroad  company's  right  of  way  may  institute  the  proceedings  "in 
any  county  through  which  the  railroad  may  run;"  or,  "all  proceed- 
ings under  this  chapter  must  be  brought  in  the  district  court  for  the 
county  in  which  the  property  or  some  part  thereof  is  situated."  '''' 
These  provisions  do  not,  however,  conflict  with  that  section  of  the 
constitution  which  provides  in  effect  that  all  civil  and  criminal  busi- 
ness arising  in  any  county  must  be  tried  in  such  county.  The  mean- 
ing of  this  constitutional  clause,  as  was  held,^°  is,  that  actions  affect- 
ing realty  shall  be  tried  in  the  county  where  the  business  or  the  causes 
arise ;  or  if  the  cause  of  action  arises  in  more  counties  than  one,  then 
in  either  of  said  counties.  The  object  in  permitting  one  proceeding 
to  settle  damages  arising  from  the  condemnation  of  the  right  of  w^y 
of  a  railroad  company  traversing  several  counties  is  to  avoid  trouble 
and  expense  in  instituting  proceedings  in  each  of  the  several  counties, 
when  the  property  which  belongs  to  one  proprietor  and  is  contigTious 
and  used  together  for  a  common  purpose,  can  be  considered  in  one 
proceeding. 

§  164,     Who  may  be  appointed  as  commissioners  and  how. 

The  statutes  which  give  the  power  to  telegraph  companies  the  right 
to  condemn  the  right  of  way  of  a  railroad  company  for  its  line,  gen- 
erally provide  the  manner  in  which  the  commissioners  are  appointed, 
and  their  qualifications.  In  substance,  these  statutes  provide  that 
on  filing  the  petition  by  the  parties  seeking  to  appropriate  the  right 
of  way  for  their  use,  a  writ  must  be  issued  by  the  clerk  of  the  court  in 
which  the  petition  is  filed,  commanding  the  sheriff  to  summon  a  cer- 
tain number  of  good  and  lawful  men  to  appear  at  the  office  of  said 
clerk  or  at  or  near  the  property  to  be  condemned.    Erom  this  number 

■*  Postal   Tel.   Cable  Co.     v.     Oregon  ■•Laws   of   Utah. 

Short  Line  R.   Co.,   23   Utah.   474.   6-')  •«  Desert   Irr.    Co.    v.    IMcTntyre.    10 

Pa.   73,5.   90   Am.   St.   Rep.   705.  Utah  368,  52  Pac.  628. 


156  TELEGKAPII   AND    TELEPHONE    COMPANIES.  [§    164 

each  party  has  the  right  to  select  a  certain  equal  number;  those  se- 
lected by  both  parties  should  choose  another  party  from  among  those 
summoned,  and  these  constitute  and  compose  the  commission.  The 
number  to  be  summoned  by  the  sheriff  is  not  the  same  in  all  statutes : 
some  provide  that  nine  be  summoned  and  that  two  be  selected  by 
each  of  the  parties  to  the  proceeding,  who  in  turn,  choose  another; 
other  statutes  provide  for  not  so  many;  still  others  provide  for 
more.  In  other  words,  these  statutes  differ  with  respect  to  the  num- 
ber, but  the  provision  is  always  arranged  so  that  there  shall  be  an 
odd  number  composing  the  commission.  Some  statutes  provide  that 
the  commissioners  shall  be  appointed  by  the  court ;  but  it  seems  to  us 
the  better  policy  to  give  the  appointive  power  to  the  parties  to  the 
suit,  as  above  shown.  The  commissioners  should  be  good  and  lawful 
men ;  and  where  the  record,  which  the  clerk  is  required  to  keep,  shows 
that  the  men  summoned  by  the  clerk  w^ere  good  and  lawful  men,  this 
is  sufficient  evidence  of  that  fact,  although  the  sheriff's  return  does 
not  show  that  they  possessed  those  qualifications,  as  required  by  the 
precept  under  which  they  were  summoned.'^ '^  They  must  be  citizens 
of  the  county  in  which  the  petition  is  filed ;  and,  in  case  the  proceed- 
ing is  in  one  suit  to  condemn  the  right  of  way  of  a  railroad  company 
traversing  several  counties,  the  commissioners  should  be  citizens  of 
the  county  in  which  the  petition  is  filed,  and  that  through  which  the 
road  runs.  They  should  also  be  disinterested  parties ;  and  sometimes 
the  charter  of  the  company  provides  that  the  commissioners  should 
have  this  qualification :  where  this  is  the  case,  and  it  does  not  appear 
anywhere  in  the  proceedings  that  the  commissioners  were  disinter- 
ested, the  same  will  be  void  and  of  no  effect ;  '^^  but  if  the  statute,  or 
the  company's  charter,  should  both  fail  to  have  such  a  provision,  the 
qualification  would  still  be  necessary.  They  should  be  qualified  elec- 
tors of  the  county  in  which  they  are  then  residing,  and  this  qualifica- 
tion embraces  the  fact  that  they  should  be  intelligent  men,  and  in 
?ome  instances  statutes  require  that  they  be  property-holders. 

§  165.     Duty  of  commissioners. 

The  duties  of  the  commissioners,  who  are  appointed  to  inspect  the 
premises  for  the  purpose  of  determining    the    amount    of    damages 

"Louisville,     etc.,  R.   Co.   v.   Postal  '» Madden  v.  Louisville,  etc.,  R.  Co., 

Tel.    Cable    Co.,   68   Miss.    806,    10   So.       06  Miss.  258,  0  So.  181. 
74. 


*§>    166]  ON  RAILROAD  RIGHT  OF  WAY.  157 

which  are  to  be  awarded  for  the  property  condemned,  are  generally 
regulated  by  the  statutes  on  this  subject.  The  following  may  be 
mentioned  as  some  of  their  duties  after  the  oath  has  been  admin- 
istered to  them  to  well  inquire  and  true  assessment  make  of  the  due 
compensation  for  cash  value  and  actual  damage  which  the  railroad 
company  shall  be  entitled  to  receive  for  the  appropriating  of  the 
property:  They  may,  hear  testimony  of  witnesses  offered  by  either 
party  as  to  the  cash  value  of  the  land  sought  to  be  appropriated ;  and 
the  injury  resulting  to  such  railroad  company,  as  the  necessary  and 
immediate  consequence  of  the  appropriation  sought  to  be  made:  but 
in  taking  such  testimony,  none  should  be  admitted  with  reference  to 
uncertain  or  remote  benefits  or  disadvantages  that  may  or  may  not 
occur  in  the  future ;  neither  should  any  evidence  be  received  in  re- 
spect to  the  title  or  ownership  of  the  property;  nor  upon  any  ques- 
tion other  than  that  of  the  cash  value  of  lands  sought  to  be  appro- 
priated by  the  telegTaph  company.  They  cannot  determine  the  ques- 
tion of  public  use,  nor  the  question  of  necessity  for  the  taking ;  except 
as  to  the  amount  of  land  or  the  width  of  the  right  of  way."^  All  of 
this  testimony  should  be  taken  down  in  writing.  They  may  sit  from 
day  to  day  until  their  investigations  and  other  duties  are  completed, 
and  after  making  their  award,  which  may  be  done  by  a  majority  of 
the  commissioners,  they  shall  make  and  sign  a  report  of  their  pro- 
ceedings in  the  premises  and  deliver  the  same  to  the  sheriff,  who  shall 
make  an  immediate  return  thereof  with  the  writ  and  his  actions 
thereon  to  the  clerk  of  the  county  court.  There  may  be  other  duties 
which  the  commissioners  are  to  perform,  but  it  will  hardly  be  nec- 
essary to  enumerate  them  here.  However,  it  may  be  well  to  make 
mention  of  another  duty  which  is  of  the  highest  importance  and  im- 
posed upon  all  who  are  intrusted  and  empowered  with  the  authority 
to  assess  damages  for  the  appropriation  of  private  or  public  property 
for  public  work :  that  is,  they  must  faithfully  and  honesthj  perform 
all  duties  imposed  upon  them  as  commissioners. 

§  166.     Special  court  for. 

In  some  states,  the  statutes  thereof  provide  for  the  proceeding  to  be 
had  before  a  special  court  for  that  pui*pose,  consisting  of  a  justice  of 

""Union  Pac.  R.     Co.     v.     Colorado       Postal  Tel.  Cable  Co.,  30  Colo.  133.  60 

Pac.  564,  97  Am.  St.  Pep.  106. 


158  TELEGEAPH  AXD   TELEPHONE  COMPANIES.  [<§>    166 

the  peace  and  a  jury.  The  manner  in  which  the  proceedings  are  be- 
gun is  somewhat  similar  to  that  under  a  commissioner's  court.  As 
for  instance,  the  telegTaph  company  must  file  its  petition  with  the 
clerk  of  the  county  court  in  which  the  proceedings  are  begun,  after 
which  the  clerk  issues  a  summons  to  a  justice  who  is  to  try  the  cause; 
summonses  are  also  issued  for  a  jury,  whose  names  are  usually  drawn 
from  the  regTilar  jury  box,  to  appear  at  a  certain  time  and  place  for 
the  purpose  of  serving  as  jurors ;  and  the  railroad  company  is  also 
summoned  to  appear  at  that  time  to  defend  the  cause.  The  court  is 
organized  and  conducted  as  other  courts,  and  only  such  evidence  can 
be  admitted  as  that  which  is  admissible  in  a  commissioner's  court. 
The  judgment  and  verdict  of  the  court  has  the  same  effect  and  is  en- 
forced as  in  these  courts.  In  fact,  there  is  very  little  difference  be- 
tween the  procedure  of  a  commissioner's  court  and  that  of  the  special 
court  provided  for  in  the  condemnation  of  a  right  of  way  of  a  railroad 
company  for  the  lines  of  a  telegraph  company;  and  for  this  reason 
this  particular  court  wull  not  be  further  considered. 

§  167.     The  award  of  commissioners. 

The  award  of  commissioners  in  condemnation  proceedings  operates 
as  a  judgment  between  the  parties  and  is  governed  by  the  same  rules 
that  are  ordinarily  applied  to  judgments  of  courts.  Such  an  award, 
or  a  verdict  and  judgment  on  appeal  therefrom,  has  the  same  force  as 
an  ordinary  judgment  rendered  by  a  court  of  competent  jurisdic- 
tion.^" It  is  conclusive  upon  the  parties  and  privies,  unless  an  ap- 
peal be  taken.  This  is  plainly  the  intent  of  the  statute,  for  the  insti- 
tution of  this  tribunal  would  be  useless  unless  their  estimate  should  be 
regarded  as  final.^^     Any  other  view  of  the  question  would  lead  to 

**  Charleston,  etc.,  R.  Co.  v.  Hughes,  2.59;   McCulley  v.  Cunningham,   11  So. 

105   Ga.    1,   30   S.   E.   972,   70  Am.   St.  G94;   New  Orleans,  etc.,  R.  Co.  v.  Ra- 

Rep.  17;     Postal     Tel.     Cable     Co.  v.  basse,    10   So.    708;    Atchison,   etc.,   R. 

Louisville,  etc.,  R.  Co.,  9  So.  119;  Al-  Co.  v.  Boerner,  34  Neb.  240,  51  N.  W. 

drich  V.  Cheshie  R.  Co.,  21  N.  H.  359,  842,     33  Am.  St.  Rep.  637;     Atchison, 

63     Am.  Dec.  212;  Louisville,  etc.,  R.  etc.,  R.  Co.  v.  Forney,  35  Neb.  607,  37 

Co.  V.  People's  St.  R.,  etc.,  Imp.   Co.,  Am.  St.  Rep.  450,  53  N.  W.  585. 

13   So.  308;    Memphis,  etc.,   R.   Co.  v.  "Postal  Tel.  Cable  Co.  v.  Ala.,  etc., 

Birmingham,  etc.,  R.  Co.,   11   So.  642;  R.  Co.,  S   So.  375. 
Newton   v.   Ala.,   etc.,   R.    Co.,    13    So. 


§    168]  ON  RAILROAD  RIGHT  OF   WAY.  159 

great  practical  difficulties,  for  if  we  could  go  behind  their  assessment, 
it  would  be  impossible  to  draw  any  line  beyond  which  we  should  not 
proceed.  There  would  be  scarcely  any  injury  a  landowner  or  a  rail- 
road company  could  sustain  which  might  not  be  said,  with  more  or 
less  plausibility,  to  be  one  Avhich  the  commissioners  could  not  take 
into  consideration.^^ 

§  168.     May  have  new  award. 

These  statutes  provide  that  on  good  cause  shown,  either  by  the  tele- 
graph or  railroad  company,  by  motion  to  the  circuit  court  of  the  dis- 
trict in  which  the  proceedings  were  had,  a  new  inquirj^  and  assess- 
ment may  be  had.  It  is  necessary  that  these  motions  should  state  the 
grounds  upon  which  said  inquiry  is  asked,  and  supported  by  an  affi- 
davit of  the  party  applying  therefor,  in  which  it  should  be  stated 
that  the  award  of  the  commissioners  was  contrary  to  the  law  and  evi- 
dence. A  new  inquiry  does  not  follow  as  a  matter  of  course,  either 
from  the  fact  that  illegal  testimony  was  heard  or  that  a  party  was 
wrong-fully  denied  the  right  to  open  and  conclude  the  argument.®^  A 
copy  of  all  the  proceedings  had  in  the  case,  including  a  copy  of  all  the 
evidence,  should  be  filed  with  the  motion.  And  after  the  opposite 
party  has  had  proper  notice  of  said  motion,  the  court  should  consider 
the  same.  If  the  court  should  be  of  the  opinion  that  the  commis- 
sioners acted  upon  testimony  which  was  irrelevant,  immaterial  or  in- 
competent, that  the  award  was  contrary  to  the  law  and  the  evidence, 
and  that  injustice  has  been  done,  a  new  hearing  and  assessment  should 
be  ordered  by  said  court.  The  court  being  of  the  opinion  that  a  new 
award  should  be  had  on  said  motion,  should  order  a  new  writ  to  issue 
and  another  trial  and  assessment  to  be  had.  There  are  generally  some 
limitations  and  conditions  provided  for  in  the  statutes  which  must  be 
complied  with.  For  instance,  it  is  provided  that  not  more  than  one 
inquiry  and  assessment  shall  be  allowed  at  the  instance  of  the  same 
party  in  reference  to  the  same  matter ;  and,  that  in  case  an  appeal  be 
taken  from  the  decision  of  the  court  to  the  supreme  court,  the  same 
must  be  done  within  a  limited  time — generally  about  thirty  days — 
but  an  appeal  shall  not  hinder  or  delay  the  telegraph  company  from 

^•Aldrich  v.   Cheshire   R.   Co..   21   N.  *»  Postal    Cable    Co.   v.   Ala.,   etc..   R. 

H.  359,  53  Am.  Dec.  212.  Co.,  8   So.   376. 


160  TELEGRAPH   AND   TELEPHONE    COMPANIES.  ["§    168 

constructing  and  operating  the  lines  over  the  right  of  way  of  the  rail- 
road company,  after  it  has  paid  or  tendered  the  amount  of  award  for 
which  they  are  considered  to  be  entitled. 

§  169.     Same  as  in  other  condemnation  proceedings. 

The  foregoing  rule  in  regard  to  the  nature  of  condemnation  pro- 
ceedings of  a  telegraph  company  for  the  use  of  a  right  of  way  of  a 
railroad  company  for  its  lines,  is  equally  applicable  in  cases  brought 
by  the  same  companies  for  the  condemnation  of  private  or  public 
property  for  a  right  of  way.  Of  course,  there  is  a  little  variance  in 
the  rule  in  some  cases,  but  this  may  be  easily  detected  and  guarded 
against. 

§  170.     Duty  the  company  owes  to  the  railroad  company. 

After  a  telegraph  company  has  acquired  the  right  to  construct  a 
line  of  wires  upon  the  right  of  way  of  a  railroad  company,  and  the 
same  has  been  or  is  being  done,  there  are  certain  duties  which  it  owes 
to  the  latter  and  to  other  companies  of  similar  nature.  For  instance, 
the  wires  should  be  so  constructed  as  not  to  interfere  with  the  moving 
of  trains,  or  any  other  business  of  the  railroad  company.  As  men- 
tioned heretofore,  telegraph  companies,  when  constructed  upon  the 
right  of  way  of  a  railroad  company,  stand  in  a  subordinate  position  to 
the  latter  in  respect  to  its  right  of  way.  The  poles  should  be  of  suffi- 
cient size  and  planted  sufficiently  deep  in  the  ground  so  as  not  to  en- 
danger the  public ;  and  they  should  be  high  enough  where  the  wires 
cross  the  railroad  track  as  not  to  interfere  with  the  running  of 
trains. ^^  The  wires  should  not  be  attached  to  any  of  the  railroad 
company's  fixtures,  nor  should  the  poles  be  erected  upon  its  embank- 
ments; nor  should  the  wires  interfere  with  other  telegraph  lines.^^ 
They  should  take  the  necessary  steps  and  precautions  for  the  protec- 
tion of  their  property  from  fire  and  for  the  operation  of  their  lines.^^ 
The  wires  should  be  properly  insulated  for  their  o^vn  protection  as 
well  as  for  the  public.    In  case  the  railroad  company  should  enlarge 

«*  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  etc.,  R.  Co.,  23  Utah,  474,  65  Pac.  735, 
Cable  Co.,  24  So.  408.  90  Am.  St.  Rep.  735. 

«=  Postal     Tel.   Cable   Co.  v,   Oregon,  »« Postal  Tel.  Cable  Co.  v.  Louisville 

West.  R.  Co.,  22  So.  219. 


§    171]  ox    KAILRU.VD    RIGHT    OK    WAY.  161 

its  business  so  that  it  became  necessary  to  take  more  or  all  of  its 
right  of  way,  and  to  do  so  -would  necessitate  the  removal  of  the  line, 
the  telegraph  company  should  make  such  removal,  at  its  own  expense, 
after  proper  notice  to  that  effect  had  been  given. 

§  171.     The  measure  of  damages — extent  of  injury. 

Uie  next  ihiiiii'  to  be  coii.sidered  is  the  measure  of  damages  to  be 
awarded  a  railroad  com]iany  Ijy  the  teleizraph  company  for  the  con- 
struction of  a  line  of  its  wires  over  the  former's  right  of  way.  The 
only  interest  which  a  railroad  company  acquires  in,  and  the  only  pur- 
pose to  which  it  can  use  its  right  of  way,  is  such,  only,  as  may  be  nec- 
essary to  carry  on  the  railroad  business ;  but  everything  which  may  be 
necessary  to  do  this  may  ho  done.  It  cannot  sell,  transfer,  encumb<r 
or  use  the  right  of  way,  except  as  its  necessities  and  conveniences  may 
demand  for  the  proper  operation  of  its  road.  It  cannot  license  the 
appropriation  of  any  part  of  such  right  of  way  to  private  business 
purposes,  nor  to  public  purposes  except  so  far  as  may  be  needful  and 
helpful  in  the  operation  of  the  road  itself.^"  A  telegraph  company 
does  not  under  a  condemnation  proceeding  acquire  a  fee  to  the  land, 
but  only  an  easement  thereon  to  carry  on  the  business  of  telegraphy.*^ 
It  cannot  use  the  land  for  any  other  purpose.  The  company  cannot 
take  possession  of  it  or  use  it  for  any  other  purpose  than  to  erect 
poles  and  suspend  wires  thereon.  The  company  will  have  the  right 
to  enter  ui)on  that  portion  of  right  of  way  which  is  between  the  tele- 
graph poles  and  under  its  wires,  for  the  purpose  of  repairing  its  lines ; 
but  the  telegraph  company  has  no  right  to  exclude  the  railroad  com- 
])any  from  the  use  of  this  land.  The  ownership  of  the  railroad  com- 
pany to  the  roadbed  remains  as  it  was  before,  while  the  telegraph 
company  merely  acquires  an  easement  upon  what  it  condemns,  for  the 
purpose  of  entering  thereon  to  erect  and  repair  the  lines.*^  Therefore, 
taking  these  facts  into  considerati(in,  the  extent  of  injury  for  which 
damages  shall  be  awarded  is  very  small,  and  even  approaches  that  in- 
jury which  courts  refuse  to  uotiee,  although  it  is  held  by  some  of  the 

*' Jones  on  Easements,   §   383.  ""St.   Louis,  etc..    R.    Co.    v.    Postal 

8«  Union  Pac.  R.  Co.  v.  Colo.,  etc..  R.  Tel.   Co..    173   111.   508.   51    X.   E.   382: 

Co.,  30  Colo.   ]:?3.  (Ill  Pae.  .1(54.  07  Am.  Chicago,  etc.,  R.  Co.  v.  City  of  Chica- 

St.  Rep.  106.  go,  106   J.  S.  248.   17  Supt.  Ct.  581. 
T.  &  T.— 11 


162  TELEGRAPH   AXD    TELEPHONE    COMPANIES.  [<§,    171 

courts  that  the  railroad  companies  are  entitled  to  practically  nominal 
damages,  at  least,  for  such  use  of  their  right  of  way.^" 

§  172.     Same  continued — expense  incurred — no  reason. 

It  has  been  said  Avith  much  earnestness  and  with  some  degree  of 
plausibility,  that  it  would  be  unjust  to  allow  a  telegraph  company  to 
plant  its  poles  along  the  right  of  way  when  the  railroad  company  had 
expended  thousands  of  dollars  to  clear  and  keep  it  free  from  obstruc- 
tions, and  yet  pay  nothing  for  the  privilege.  But  this  view  is  more 
specious  than  sound,  for  the  railroad  must  incur  this  expense  for  its 
own  purposes,  whether  the  telegraph  line  is  there  or  not,  and  must 
keep  the  right  of  way  clear  of  obstructions,  whether  it  is  occupied  by 
a  telegi-aph  line  or  not :  so,  there  is  no  greater  burden  or  expense,  be- 
cause of  the  presence  of  the  telegraph  lines.'^^  In  one  state,  in  par- 
ticular, this  reasoning  is  not  held  sound.^^  In  this  state,  the  amount 
of  damages  allowed  the  railroad  company  has  been  fixed  at  the  sum 
which  it  originally  cost  to  clear  eight  feet — that  being  the  width  of 
the  cross-arms  on  the  telegraph  line — of  the  right  of  way,  plus  the 
sum  Avhich  would  yield  an  annual  interest  sufficient  to  keep  that  por- 
tion of  the  right  of  way  clear. 

§  173.     Same  continued — measurement — true  rule. 

We  presume  it  is  an  undisputed  fact  that  the  railroad  company 
loses  no  interest  to  its  right  of  way  but  that  it  may  be  used  for  any 
purpose  necessary  and  convenient  for  carrying  on  all  business  per- 

**  Postal   Tel.    Cable     Co.   v.   Oregon,  San  Antonio,  etc.,  K.  Co.  v.  Southwest- 
etc,  R.,  104  Fed.  623,  affirming   (C.  C.  ern,     R.     Tel.     etc.,     Co.,     56     S.     W. 
A.),  Ill  Fed.  842   ($500  for  a  distance  201;   Texas  Midland  R.   Co.  v.   South- 
of  200  miles)  ;   Chicago,  etc.,  R.  Co.  v.  western  Tel.,  etc.,  Co.,  57  S.  W.  313. 
Chicago,   160  U.   S.   248,   17    Supt.   Ct.  '^Chicago,  etc.,    R.    Co.    v.    Chicago, 
581;    St.   Louis,   etc.,  R.   Co.   v.   Postal  160  U.  S.  248,   17  Sup.   Ct.  581. 
Tel.  Co.,   173  111.   508,  51   N.   E.   382;  ^=  Postal  Tel.  Cable  Co.  v.  Louisville 
Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Ca-  Western  R.  Co.,  49  La.  Ann.   1270,  22 
ble  Co.,  101  Tenn.  62,  41  L.  R.  A.  403;  So.   219.     See,   also.   Postal   Tel.   Cable 
Gulf,    etc.,    R.     Co.    V.     Southwestern  Co.  v.  Morgan's  Louisville,  etc.,  R.  Co., 
Tel.,    etc.,    Co.,    52    S.    W.    87;    South-  49    La.   Ann.    58,    21    So.    183;    South- 
western Tel.,  etc.,  Co.  v.  Gulf,  etc.,  R.  western  Tel.  Co.  v.  Kansas  City,  etc., 
Co.,  52  S.  W.  107;  Texas,  etc.,  R.  Co.  R.  Co.,  109  La.  892. 
V.  Postal  Tel.  Cable  Co.,  52  S.  W.  108; 


<§>    173]  Oi^   KAILKOAD  RIGHT  OF   WAY.  163 

tainiiig  to  railroading;  on  the  other  hand,  the  telegraph  company  be- 
comes subordinate  to  and  is  dependent  on  the  rights  of  the  former 
company,  M'ith  respect  to  the  uses  of  its  right  of  way;  by  reason  of 
which  their  linos  may  be  removed  from  the  right  of  way  of  the  rail- 
road company,  if  it  is  necessary  for  the  latter  to  carry  out  its  duties. 
Therefore,  it  seems  that  damages  by  reason  of  the  probability  of  the 
railroad  company  using  all  of  its  right  of  way  in  the  future  for  an  en- 
largement of  its  railroad  facilities,  would  be  too  remote  and  should 
not  be  allowed.^^  It  is  true,  also,  that  the  telegraph  company  ac- 
tually occupies  a  very  small  space  of  the  railroad  company's  riglit  of 
way,  the  poles  occupying  a  space  of  ground,  on  the  average,  of  eigh- 
teen inches  and  about  one  hundred  and  seventy-five  feet  from  each 
other,  and  about  thirty  feet  from  the  outside  track.  And  while  the 
wires  are  stretched  over  and  cover  a  space  all  along  the  right  of  way 
of  about  eight  feet,  yet  this  can  only  be  used  by  the  telegraph  company 
for  the  purpose  of  entering  thereon  to  construct  and  maintain  the 
lino ;  therefore,  in  most  instances  the  damages  would  practically  be 
nominal;  however,  this  would  not  always  be  the  case.  There  is  no 
question  but  that  the  railroad  company  is  entitled  to  damages ;  since, 
if  its  property  should  be  taken  for  a  public  use  without  making  due 
compensation  for  same,  this  would  clearly  be  unconstitutional.®'* 
How  much  damages,  and  tho  manner  in  which  the  measurement  is  to 
be  made,  seems  to  be  the  question  most  often  confronted  and  least 
seldom  understood.  The  following  rule — and  one  we  think  to  he 
clearly  correct — ^has  been  held  to  be  the  measure  of  damages  to  which 
a  railroad  company  is  entitled  for  the  use  of  its  right  of  way  by  a 
telegraph  company :  '"The  measure  of  damage  .  .  .  suffered  by 
a  railroad  company  is  not  the  value  of  the  land  embraced  within  the 
right  of  way  between  the  poles  and  under  the  wires,  but  the  measure 
of  damages  is  the  extent  to  which  the  value  of  the  use  of  such  spaces 
by  the  railroad  company  is  diminished  by  the  use  of  the  same  by  the 
telegraph  company  for  its  purposes."®^  The  railroad- company  can- 
not sell,  incumber,  transfer  or  use  its  right  of  way  except  as  may  be 

»» Chicago,     etc.,     R.  Co.  v.  Chicago,  "St.  Louis,  etc..     R.     Co.  v.   Postal 

166  U.  S.  248,   17  Siipt.  Ct.  .581.  Tel.   Co.,   173   111.   508,   61    X.   E.   382; 

»*  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable 

Cable  Co.,  24  So.  408.  Co.,  26   So.   370. 


164  TELEGRAPir    AXD   TELEPHONE    COMPANIES.  [<^    173 

necessai-A-  for  the  proper  operation  of  the  roads :  therefore,  any  sup- 
posed market  value  of  this  land  cannot  be  considered  in  determining 
the  measure  of  damages  to  be  awarded  the  railroad  company;  but 
the  value  of  this  space  must  be  determined  by  the  use  to  which  it  is 
applied.  And  in  determining  this  last  question,  the  value  of  the  use 
of  this  space  must  be  such  as  that  for  which  the  railroad  company 
may  apply  it,  and  not  the  value  of  the  use  for  which  the  telegraph 
company  may  apply  the  same ;  for  the  value  of  the  use  in  the  latter 
may  be  greater  than  that  in  the  former.  And  as  the  railroad  com- 
pany cannot  speculate  upon  the  value  of  its  right  of  way,  it  could 
only  recover  such  damages  for  the  appropriation  of  such  space  as  the 
value  of  tlie  use  of  same  for  railroad  purposes  had  been  decreased  or 
diminished. ^^ 

§  174.     Exclusive  right — on  railroads. 

There  seems  to  be  some  conflict  of  opinion  among  the  courts  as  to 
whether  a  telegraph  company  can  acquire,  either  by  a  contract  with 
the  railroad  company  or  by  legislative  grant,  an  exclusive  right  to 
construct  a  line  of  wires  along  and  upon  the  right  of  way  of  a  rail- 
road company ;  but  the  great  preponderance  of  authority  is  that  such 
rights  cannot  be  acquired. ^''^  The  act  of  Congress  ^^  granting  to  a 
telegraph  company  the  right  to  construct  a  line  of  wires  along  post- 
roads  did  not  give  it  the  sole  right  to  construct  a  line  over  the  right  of 
way,  so  as  to  exclude  other  companies  whose  lines  would  not  interfere 
with  those  of  the  first  company ;  ^^  and  this  act  prevents  the  tele- 
graph com]iany  from  acquiring  an  exclusive  jirant  in  any  manner. 

§  175.     Contract  with  railroad  company  to  that  effect. 

This  act  of  Congress  prevents  a  telegraph  company  from  acquiring 
the  exclusive  right  to  construct  a  line  upon  the  right  of  way  of  a  rail- 

^'I.    C.    R.    Co..v.    Chicago,    141    111.  v.  Atlantic,  etc..  Tel.  Co.,  7   Bliss    (U. 

.509,   30   N.   E.   1046;    Chicago,  etc.,  R.  S.)    367. 

Co.  V.   Chicago,   149   111-  4.57,  37  N.  E.  New   Mexico. — Uuion    Trust    Co.    v. 

78,    166   U.    S.   226,    17    Sup.   Ct.    .581;  Atchison,  etc.,  R.  Co.,  S  X.  Mex.  327. 

Lewis,  Em.  Dom.,  §  485.  43  Pac.  701. 

""  U.  <S'.— West.  U.  Tel.   Co.  v.   Balti-  OMo.— Marietta,     etc..     R.      Co.      v. 

more,    etc.,   Tel.    Co.,    19    Fed.    660,   22  West.  U.  Tel.  Co.,  38  Ohio  St.  24. 
Fed.    133,   23    Fed.    12;    West.   U.    Tel.  »« Under  U.  S.  Rev.   Stat.,  §5263. 

Co.   V.   American   U.   Tel.   Co.,   9   Bliss  »» West.   U.  Tel.   Co.  v.  American  U. 

(L'.    S.)     72.      Compare    West    U.    Tel.  Tel.  Co.,  9  Bliss    (U.  S.)    72. 


<^    175]  ox   KAILKOAD  KIGIIT   OF   WAY.  165 

road  e()]iii)aiiy  by  a  contract  entered  into  with  the  hitter  to  that  effect; 
and  jet,  this  is  not  the  only  reason  why  such  a  contract  could  be  held 
invalid.  The  state's  right  to  exercise  the  power  of  eminent  domain 
extends  over  every  foot  of  land  within  its  borders;  so,  the  title  ac- 
([uired  by  any  eor[)()ratiun,  un<lcr  the.  power  of  eminent  domain,  is 
held  subject  to  the  rights  of  the  state.  As  has  been  seen,  property 
held  by  a  corporation  acquired  under  the  right  of  eminent  domain 
may  itself  be  again  condemned  for  other  public  purposes;  as  where 
the  right  of  way  of  a  railroad  company  may  be  condemned  for  the 
right  of  way  of  anotlier  railroad  company,  or  for  the  use  of  a  line  of 
telegraph  wires.  If  a  railroad  company  could  acquire  a  right,  under 
its  condemnation  proceedings,  to  contract  with  a  telephone  company, 
so  as  to  give  the  latter  an  exclusive  right  to  construct  a  line  on  its 
right  of  way,  the  state  could  not,  of  course,  under  such  circumstances, 
grant  the  poAver  to  another  company:  it,  therefore,  follows  that  it 
would  be  divested  to  the  extent  of  such  property,  of  its  power  of  emi- 
nent domain;  but  of  this  it  cannot  be  divested.'  The  natural  conclus- 
ion is  that  the  railroad  can  have  no  power  to  grant  such  exclusive 
right.  Again,  the  right  of  way  of  a  railroad  company  was  acquired 
for  certain  specific  purposes;  and  for  this  reason  the  company  could 
not  use  this  property  for  any  other  purpose  except  that  for  which  it 
was  acquired.  It  is  never  contemplated  in  the  grant  of  such  prop- 
erty that  it  will  use  it  except  for  the  purpose  of  constructing  a  track 
thereon,  and  for  such  other  structures  and  uses  necessary  and  inci- 
dent to  the  operation  of  its  road.  For  instance,  it  could  not  sell  or  in- 
cumber the  property,  or  even  constnict  a  line  of  telegraph  thereon, 
unless  the  same  was  done  for  the  express  purpose  of  canwing  on  its 
railroad  business.  An  attempt  to  grant  to  another  company  a  power 
which  it  cannot  exercise  itself,  or  an  attempt  to  add  an  unlimited 
franchise  to  one  which  is  limited,  would  be  nothing  less  than  an  at- 
tempt to  do  something  beyond  its  power. ^•^'^  It  has  been  further  held 
that  such  contracts  could  not  be  held  valid,  as  they  would  be  in  re- 
straint of  trade  because  creating  monopolies  which  are  prohibited  both 
by  the  comnn^n  and  statutory  laws.^^^ 

'«"  :Merc!i utile   Trust   Co.   v.   Athintic.  '»>  ilobile.  etc.,  R.  Co.  v.  Postal  Tel. 

etc..  R.  Co..  03   Fed.   010.  Cable  Co.  26  So.  370. 


166  TELEGRAPH   A^^D   TELEPHONE    COMPANIES.  [<§,    176 

§  176.     State  legislation — no  exclusive  grant. 

Xot  only  is  a  railroad  company  prohibited  from  granting  exclus- 
ive privileges  to  a  telegraph  company  to  construct  a  line  upon  its 
right  of  way,  but  the  right  cannot  be  gTanted  by  state  legislation.  ^*^- 
The  right  acquired  from  the  state  by  the  telegraph  companies  to  do 
business  as  a  corporation  is  in  the  nature  of  a  contract,  carrying  with 
it  a  delegated  authority  to  condemn  private  and  public  property  for 
a  right  of  way;  but  this  inherent  delegated  power,  does  not  carry 
with  it  immunity  from  future  legislations.  In  other  words,  it  does 
not  enter  into  and  become  a  part  of  the  contract  made  between  the 
state  and  the  incorporators,  whereby  the  latter  acquires  the  right  to 
construct  and  maintain  a  public  telegraph  line,  so  as  to  protect  it  un- 
der that  clause  of  the  constitution  which  prohibits  the  passing  of  o 
law  impairing  the  obligation  of  contracts.  As  was  very  ably  ob- 
served on  this  point  by  Cooley :  "Any  legislative  bargain  in  restraint 
of  the  complete  continuance  and  repeated  exercise  of  the  right  of  emi- 
nent domain  is  unwarranted  and  void ;  and  that  provision  of  the  con- 
stitution of  the  United  States  which  forbids  the  state  violating  the 
obligation  of  contracts  could  not  be  so  construed  as  to  render  valid 
and  effectual  such  a  bargain,  which  originally  was  in  excess  of  proper 
authority."  ^^^  The  right  of  eminent  domain  is  an  element  of  sov- 
ereignty, and  a  contract  in  restraint  of  a  free  exercise  of  this  right  is 
not  obligatory  on  the  state,  and  does  not  fall  within  the  inhibition  of 
the  constitution  of  the  United  States.  ^^"^  The  right  to  exercise  the 
power  of  eminent  domain  is  an  inherent  power  and  one  from  which 
the  state  cannot  be  divested,  and  it  has  the  right  to  exercise  this 
power  over  every  foot  of  land,  whether  held  by  private  citizens  or 
corporations :  so,  if  it  could  possibly  grant  an  exclusive  right  to  a  tele- 
graph company  to  construct  its  lines  upon  the  right  of  way  of  a  rail- 
road company,  it  would  necessarily  be  divested  of  this  power. 

'""Pensacola  Tel.  Co.  v.  West.  U.  Tel  506;  West  Eiver  Bridge  Co.  v.  Dix,  6 

Co.,  96  U.  S.  1,  affirming  2  Woods   (U.  How.  531. 

S.)    643;  Muskogee     Nat.     Tel.  Co.  v.  '"*  Hyde   Park  v.   Oak  Woods  Ceme- 

Hall   (55  C.  C.  A.  536),  118  Fed.  382.  tery  Association,  14  Am.  &  Eng.  Corp. 

"* Cooley  Const.  Lim.    (3  Ed.),  525;  Cas.  417. 
Pvailroad   Co.   v.   Railroad   Co.,    1)7    111. 


<§    178]  ON  RAILROAD   RIGHT  OF  WAY.  167 

§  177.     Act  of  Congress — prohibits  exclusive  right. 

"Any  telegraph  company  organized  under  the  laws  of  any  state, 
shall  have  the  right  to  constinict,  maintain  and  operate  telegraph 
lines  over  any  part  of  the  public  domain,  over  and  along  any  of  the 
militaiy  or  post-roads  of  the  United  States,  .  .  .  provided,  etc.  i^'*'^ 
.  .  .  and  any  such  company  may  take  from  the  public  lands 
through  which  its  line  passes,  the  necessary  stone,  timber  and  other 
material  for  its  poles,  stations  or  other  needful  uses  in  constructing 
its  lines."  ^"°  In  view  of  these  statutes,  a  state  cannot  grant  to  a  tele- 
gra,ph  company  exclusive  rights  in  the  right  of  way  of  a  railroad  com- 
pany within  the  state.  The  statute  amounts  to  a  prohibition  of  all 
state  monoplies  in  this  particular.  ^'^'^ 

§  178.     Same  continued — contra  view — lines  on  same  poles. 

While  the  above  is  the  general  and  accepted  rule,  yet  there  are 
some  courts  which  hold  that  a  telegTaph  company  can  acquire  an  ex- 
clusive privilege  to  construct  a  line  of  wires  upon  the  right  of  way  of 
a  railroad  company. ^"^^  We  see  no  reason  why  a  contract  made  be- 
tween a  railroad  and  a  telegraph  company  for  exclusive  rights  should 
be  void,  in  so  far  as  it  merely  excludes  competitors  from  the  line  of 
poles  erected  and  used  by  the  telegraph  company,^*'®  For  instance, 
a  telegraph  company  may  be  enjoined  from  constiiicting  a  line  of 
wires  upon  the  poles  of  another  telegraph  company  which  has  ac- 
quired from  the  railroad  a  contract  to  have  exclusive  privileges  along 
the  right  of  way  so  far  as  may  be  legally  done ;  but  there  is  no  reason 
why  the  other  company  may  not  construct  and  maintain  another  line 
of  poles  along  the  track  of  the  railroad  company.  ^^°  A  railroad  com- 
pany, maintaining  telegTaph  wires,  granted  to  a  telegraph  company 
the  right  to  place  a  wire  on  the  poles  of  the  former,  and  to  establish 
stations  and  do  business  with  points  off  the  road,  the  railroad  com- 

^•"U.  S.  Rev.  St.  §  5263.  Co.  v.   West,  U.  Tel.  Co.,  38  Ohio  St. 

'««U.   S.  Rev.   Stat.  §   5264.  24. 

'■^  Pensacola     Tel.   Co.   v.   West.     U.  "">  West.  U.  Tel.  Co.  v.  Chicago,  etc.. 

Tel.  Co.,  96  U.  S.  1.  affirming  2  Woods  R.  Co.,  86  111.  246,  29  Am.  Rep.  28.  See 

(U.   S.)    643.  Merriweather,  etc.,  R.  Co.  v.  West.  U. 

'•>«  Canadian  Pac.  R.  Co.  v.  West.  U.  Tel.   Co..   38   Ohio   St.   24. 

Tel.  Co.,  17  Sup.  Ct.  Can.  151,  33  Am.  ""West.  U.  Tel.  Co.  v.  Chicago,  etc., 

&  Eng.  Corp.  Cas.  1;  Marietta,  etc.,  R.  R.   Co..  S6  111.  246.  29  Am.  Rep.  28. 


168  TELEGKAPII    AXEV   TELEPHONE    COMPANIES.  [§     178 

pany  resendng  for  itself  the  right  to  local  business ;  it  was  held  that 
the  right  gTanted  was  not  exclusive,  and  that  the  railroad  could  put 
up  and  maintain  another  wire  for  its  own  use  or  for  the  use  of  a 
third  party  ;^^^  and  it  was  further  held,  in  another  case,  that  exclu- 
sive privilege  could  be  granted  to  a  telegraph  company  between  cer- 
tain points.  ^^- 

§  179.     Municipal  grants — exclusive — cannot  grant. 

As  the  legislature  cannot  grant  to  a  telegraph  company  an  exclu- 
sive franchise  to  construct  a  line  of  wires  along  the  right  of  way  of 
a  railroad,  it  cannot  delegate  this  power  to  a  municipality,  which,  in 
turn,  gTants  the  rights  to  such  companies. ^^^  Courts  in  construing 
such  grants  made  by  municipalities  place  such  constructions  thereon 
as  will  prevent  the  exclusion  of  new  companies. ^^^  Courts  will  not 
readily  interfere  at  the  instigation  of  one  company  occupying  a  street 
to  prevent  its  use  by  another  company ;  but  if  the  interference  is  un- 
reasonable and  unnecessary,  the  company  may  be  enjoined  ;^^^  and 
this  suit  may  be  brought  by  either  party  being  interfered  with.  For 
instance,  a  new  company  may  enjoin  a  company  already  occupying 
the  streets  from  unreasonably  raising  the  height  of  its  poles  so  as  to 
interfere  with  the  construction  of  a  new  line.-^^^ 

§  180.     Vested  rights — cannot  be  impaired. 

When  the  ordinance  of  a  city  grants  to  a  telephone  company  the 
right  to  construct  its  line  along  certain  streets  on  complying  with 
certain  conditions,  and  the  same  is  accepted  by  said  company  which 
has  gone  to  gi'eat  expense  in  the  construction  of  its  lines,  the  grant 
is  in  the  nature  of  a  contract,  by  which  the  company  acquires  a 
vested  right  in  the  street,  and  the  city  is  prohibited  from  imposing 

'"Marietta,  etc.,  R.   Co.  v.  West.  U.  "'Chicago   Tel.   Co.   v.   Northwestern 

Tel.   Co.,   38   Ohio   St.   24.  Tel.  Co.,  199  111.  324,  65  N.  E.  329. 

"^California,  etc.,     Tel.   Co.   v.   Alta  "'Chicago   Tel.    Co.   v.   Northwestern 

Tel.  Co.,  22  Cal.  398.  Tel.   Co.,   199   111.   324,   65   N.   E.   329; 

"^Chicago  Tel.   Co.   v.   Northwestern  Northwestern     Tel.  Exch.  Co.  v.  Twin 

Tel.    Co.,    199    111.   324,    65   N.   E.    329,  City  Tel.  Co.,  95  N.  W.  460. 

affirming    100    111.    App.    57;    Michigan  ""Cumberland  Tel.   Co.  v.   Louisville 

Tel.  Co.  V.  St.  Joseph,   121  Mich.   502,  Home  Tel.  Co.,  72  S.  W.  4.  24  Ky.  L. 

80  Am.  St.  Eep.  520,  47  L.  R.  A.  87n.  Rep.  1676. 


§     ISO]  ON    RAIMIOAI)   ICIGJIT    OF    WAY.  TIf> 

other  conditions  on  such  companies  unless  the  riglit  to  do  so  is  re- 
served- in  the  o-rant  or  hy  statute-,  or  by  the  h'c:islatnre  or  the  consti- 
tution.^^"^  The  municipalities  having  the  authority  to  manage  and 
control  their  streets  may,  under  such  powers,  stipulate  the  manner  in 
which  the  poles  and  the  wires  of  telegi*aph  companies  shall  he  con- 
structed, and  may  exercise  reasonable  contro],  over  the  manner  in 
Avhich  they  are  maintained.  Thus,  the  city  ordinances  may  require 
all  telephone  conii);iiii(s  to  erect  poles  of  certain  size  an<l  lieight,  that 
they  Ix'  securely  placed  in  the  ground  at  certain  distances  apart  and 
at  designated  places  on  the  streets,  that  the  cross-arms  Ix'  of  such  a 
length  and  so  high  al)()ve  the  ground,  that  they  be  so  constructed  and 
maintained  as  not  to  interfere  with  travel  along  the  streets,  or  to  en- 
danger the  public  safety  that  they  pay  a  certain  license  on  their  bus- 
iness, and  many  other  conditions  which  it  is  unnecessary  to  mention. 
The  power  to  construct,  maintain  and  carry  on  a  general  telephone 
business  is  acquired  from  the  state,  but  as  the  power  to  control  streets 
is  delegated  to  the  municipality,  the  condition  under  which  telephon-.^ 
companies  are  to  operate  their  business  in  cities  must  be  acquired 
from  or  through  guch  cities.  Therefore,  after  a  telephone  company 
has  been  incorporated  under  the  state  laws  it  must  acquire  the  li- 
cense from  the  city  in  which  it  is  seeking  to  carry  on  a  business.  This 
license  or  grant  accepted  by  the  telephone  company  is  in  the  nature 
of  a  contract.  Along  with  these  grants  there  are  certain  conditions 
to  be  complied  with ;  so,  Avhen  the  grant  is  accepted  by  the  company 

"•Morristown  v.  East  Tenn.  Tel.  Co.  Co.  v.  Harrison,  31  X.     J.     Eq.     627: 

(C.  C.  A.),  115  Fed.  304;   Sunset  Tel.  People's     Pass.     R.  Co.  v.  Baldwin.  14 

Co.  V.  Medford,   115  Fed.  202;   Abbott  Phila.   (Pa.)   231,  37     Leg.     Int.     424; 

V.  Duluth,  104  Fed.  833;  New  Orleans  Com.  v.  Warwick,   185  Pa.  St.  623,  40 

V.  Great  Southern  Tel.,  etc.,  R.  Co.,  40  Atl.  93;   State  v.  Sheboygan,   114  Wis. 

La.  Ann.  41,  8  Am.  St.  Rep.  502,  3  So.  505,   90   X.   W.   441.      See.   also,    Rich- 

533;   Michigan  Tel.   Co.  v.  St.  Joseph,  mond  v.  Southern  Bell  Tel.  Co  .(C.  C. 

121  Mich.   502,  80  N.  W.   382,  80  Am.  A.),   85   Fed.    19;    Com.   v.   Boston.   97 

St.  Rep.  520,  47  L.  R.  A.  87n;   Mahan  :\rass.  555;   Southern  Light,  etc.,  Co.  v. 

V.    Michigan   Tel.   Co.,  >33   N.   \\'.   629:  Board  of  Alderman,  153  IMass.  200,  26 

Northwestern  Tel.  Exch.  Co.  v.  ilinne-  N.  E.     447.     Compare     St.     Louis     v. 

apolis,  81  Minn.  140,  83  N.  W.  527,  53  West.  U.  Tel.  Co.,  148  U.   S.  92,  13  S. 

L.  R.  A.   175;   Bayonne  v.  Lord,  61  N.  Ct.  Rep.  485.     See,  also.  Northwestern 

J.    L.    136,    38   Atl.    872;    Hudson   Tel.  Tel.  Exch.  Co.  v.  Anderson.  12  N.  Dak. 

Co.   V.    Jersey   City,   40   N.   J.   L.   303.  585,  98   N.  W.   70(!.   102   Am.   St.   Rop 

60   Am.    Rep.    619;    American   U.   Tel.  580,  65  L.  R.  A.   771. 


ITO  TELEGE.^H   AND   TELEPHONE    COMPANIES.  [§    180 

and  the  conditions  are  complied  with,  the  gi-ant  becomes  irrevocable 
unless  the  right  to  revoke  is  reserved.  This  is  especially  true  when 
the  conditions  could  not  be  complied  with  without  undergoing  con- 
siderable expense ;  as  that  the  lines  shall  be  constructed  of  certain  des- 
ignated material  and  in  a  certain  prescribed  manner  wdien  it  was 
using  a  very  different  kind  and  in  quite  a  different  manner. 

§  181.     Same  continued — right  reserved. 

Of  course,  the  right  to  make  any  changes  in  the  ordinances  under 
which  the  license  was  acquired  may  be  reserved  therein;  and  when 
this  is  the  case,  the  company  takes  the  grant  subject  to  the  reserved 
right;  but  it  has  been  held  that  a  proviso  in  the  ordinance  to  the 
effect  that  "the  acts  and  doings  of  the  company  under  this  ordinance 
shall  be  subject  to  any  ordinance  or  ordinances  that  may  be  here- 
after passed  by  the  city,"  does  not  convert  the  grant  into  a  mere 
revocable  permit. ^^^  The  reserved  right  may  also  be  provided  for  in 
the  state  constitution  or  the  statutes,  and  when  such  is  the  condition 
of  affairs,  they  enter  into  and  become  a  part  of  the  grant  from  the 
state  and  subject  the  grantees  to  all  such  conditions  which  may  be 
incumbered  upon  them  by  a  change  in  the  grant  or  license  from  a 
city. .  Thus,  where  a  telephone  company  has  been  incorporated  un- 
der the  state  laws  wdiich  have  reserved  the  right  to  make  such 
change,  alteration,  or  amendments  in  the  charter  of  the  company, 
and  the  license  has  been  acquired  to  construct  a  line  of  wires  upon 
the  streets  of  a  city  and  the  company  has  gone  to  very  great  expense 
in  the  construction  and  maintenance  of  its  wires ;  and,  in  fact,  it  has 
been  operating  under  the  license  for  a  number  of  years,  it  may,  nev- 
ertheless, be  forced  by  a  legislative  change,  to  that  effect,  to  place  its 
wires  underground. -^^^  This  illustration  may,  however,  fall  under 
the  police  power  which  will  be  spoken  of  hereafter,  but  we  use  this 
broad  assertion  in  order  to  make  ourselves  understood.  When  this 
right  to  make  such  changes  in  the  grant  as  may  be  necessary  to  meet 
the  wants  and  demands  of  the  times  is  reserved,  the  right  acquired 

'«New  Orleans  v.     Great     Southern  "» People  v.  Squire,  107  N.  Y.  593,  1 

Tel.,  etc.,  Co.,  40  La.  Ann.  41,  8  Am.       Am.  St.  Rep.  893. 
St.  Rep.  502,  3  So.  533. 


<§>    182]  ON  RAILROAD  KH>HT   OF   WAY.  171 

by  the  company  is  not  a  vested  right,  but  is  accepted  subject  to  such 
reserved  right. ^-^ 

§  182.     Same  continued — police  power. 

By  virtue  of  a  delegation  by  the  state  to  the  municipality  of  its 
inherent  police  power,  the  latter,  under  such  authority,  may  make 
reasonable  provisions  for  the  peace,  safety  and  convenience  of  its 
inhabitants ;  and  such  regiilations  usually  concern  the  use  of  streets 
by  telephone  and  telegraph  companies.  So,  under  such  power,  the 
municipality  may  make  such  changes  in  the  original  requirements  as 
the  welfare  of  the  public  may  demand  ^-'  For  instance,  in  the  case 
heretofore  cited  ^^- — where  it  was  required  of  a  telephone  company 
doing  work  in  a  large  city,  with  its  network  of  cables  and  wires  at- 
tached to  poles,  houses,  buildings  and  elevated  structures,  bringing 
danger,  inconvenience  and  annoyance  to  the  public,  to  place  these  un- 
derground— the  court,  said :  "These  statutes  [having  reference  to 
the  statutes  giving  the  city  the  authority]  were  obviously  intended 
to  restrain  and  control,  as  far  as  practicable,  the  evils  alluded  to,  by 
requiring  all  such  wires  to  be  placed  underground  in  such  cities,  and 
be  subject  to  the  control  and  supervision  of  local  officers  who  could 
.  .  .  .  obviate,  in  some  degree,  the  evils  which  had  grown  to  be 
almost,  if  not  quite,  intolerable  to  the  public.  The  scheme  of  these 
statutes  was,  not  to  annul  or  destroy  the  contract  rights  of  such  com- 
panies, but  to-  regulate  and  control  their  exercise.  They  did  not  pur- 
port to  deny  them  any  privileges  theretofore  granted,  but  they  did 
require  that  they  should  be  exercised  with  due  regard  to  the  claims 
of  others,  and  in  such  a  way  that  they  should  cease  to  constitute  a 
public  nuisance,  and  should  be  enjoyed  in  such  a  manner  as  to  in- 
convenience and  endanger  the  general  public  as  little  as  possible." 

'-"See  note   120.  ^^'^^-    (P^-)    1^3;   American  Tel.  Co.   v^ 

^=1  Michigan  Tol.  Co.  v.  Charlotte,  93  Millereck  Tp.,  195  Pa.  St.  643,  46  Atl. 

Fed.    11:    People  v.   Squire,   145   U.   S.  1-iO.     Compare  State  v.  Sheboygan,  114 

175,   12  S.  Ct.  Rep.  880,  affirming  107  Wis.  505,  90  N.  W.  441. 

N.  Y.  593,  1  Am.  St.  Rep.  894;  Xorris-  '"People  v.  Squire,  107  N.  Y.  593,  1 

town  V.  Keystone     Tel.,     etc.,   Co.,   15  Am.  St.  Rep.  893. 

Montg.  Co.  Rep.   (Pa.)   &,  12  York  Leg. 


172  TELEGKAPJl    AND   TELEPHONE    COMPANIES.  [^    1S3 

§  183.     Right  to  extend  lines. 

Where  a  telephone  company  acquires  the  license  to  constract  and 
maintain  its  line  of  wires  upon  the  street  of  a  municipality,  it  may, 
under  the  right  acquired,  extend  its  lines  on  the  streets  within  the 
city.  Should  the  right  have  been  acquired  at  a  time  when  the  munic- 
ipality was  being  earned  on  under  the  laws  applicable  to  villages,  and 
it  is  afterwards  incorporated  and  operating  under  the  head  of  cities, 
the  same  right  acquired  under  its  authority  while  it  was  operating 
under  the  first  will  he  upheld  under  the  other  ;^-=^  and  an  interference 
with  such  vested  rights  may  be  enjoined  at  the  instance  of  the  com- 
pany, or  of  the  trustees  in  a  trust  deed  executed  by  it  to  secure  its 
bonds.  ^^^ 

'^Michigan   Tel.    Co.    v.    St.    Joseph.       also,  Old  Colony  Tnist  Co.  v.  \Yicliita, 
121  Mich.  502,  80  N.  W.  386,  80  Am.       123  Fed.  Eep.  762. 
St.    Rep.     520,     47  L.  R.  A.  87n.     See,  '-*  Old  Colony  Trust  Co.  v.     Wichita, 

123  Fed.  762. 


CHAPTER  X. 

LIABILITY  FOR  INJURIES  CAUSED  BY  IMPROPER  LOCATION, 
CONSTRUCTION  AND  MAINTENANCE. 

S  184.  Injuries  to  persons  on  highways — in  general. 

185.  Same  continued — injury  on  highways. 

186.  Same  continued — abandonment — no  defense. 

187.  Same  continued — strength  and  stability  of  poles. 

188.  Same  continued — failure  to  restore  line  after  storm. 

189.  Same  continued — crossing  highways  and  railroads. 

190.  Same  continued — falling  poles  and  other  fixtures. 

191.  Obstruction  to  navigation  by  cable. 

192.  Negligence — the  basis  of  such  actions. 

193.  Negligence— -what  constitutes. 

194.  Same  continued — failure  to  perform  duty. 

195.  Same  continued — an  injury  sustained. 

196.  Evidence  of  negligence. 

197.  Contributory  negligence. 

198.  Injuries  to  servants — under  common  law. 

199.  Same  continued — changed  by  statute. 

200.  Must  furnish  suitable  appliances  and  employees. 

201.  Injury  to  these  companies. 

202.  Interference  by  other  electrical  appliances — in  general. 

203.  Same  continued — how  operated — interference. 

204.  Same  continued — cause  of  disturbances. 

205.  "Inductive"'  electricitj^ — meaning  of — effect. 

206.  Same  continued — actions — causes  thereof. 

207.  Same  continued — decision  on  point. 

208.  Same  continued — decision  on  "conduction." 

209.  Same    continued — priority    of    time — induction. 

210.  Same  continued — priority  of  time — conduction. 

§   184.     Injuries  to  persons  on  highways — in  general. 

Wt'  have,  with  a  g<x>d  deal  of  [)lt'asure,  discussed  at  some  length 
the  dehnition  of  telegraph  and  telephone  companies,  their  legal 
status,  with  respect  to  the  rights  of  exercising  the  powers  of  eminent 
domain;  whether  or  not  they  were  common  carriers;  the  power  of 
alienating  their  franchises;  and  the  character  of  their  property.  We 
have  also  commented  upon  the  rights  of  way  acquired  by  such  com- 
]ianies,  giving  thereunder  the  sources  fi-oiu  whieh  such  rights  were 
accpiircd,  as  from  the  federal  and  state  government,  and  from  munic- 
ipalities; where  the  same  could  be  exercised,  under  what  manner  and 

(173) 


174  TELEGRAPH   AND    TELEPHOj^E    COMPANIES.  ["§    184 

conditions  the  same  could  be  had,  the  effect  they  would  product  upon 
the  property  acquired,  and  then,  the  interest  acquired — whether  or 
not  it  was  or  could  be  exclusive  and  vested.  Presuming  that  all  tele- 
graph and  telephone  companies  are  comprehended  under  such  defini- 
tion; that  they  have  thus  far  acquired  all  the  rights  and  powers  nec- 
essary to  carry  on  their  business  as  public  institutions  and  that  they 
have  complied  with  all  the  requirements  necessary  to  be  classed  as 
corporations;  we  shall  now  comment  upon  their  liability  for  inju- 
ries caused  by  all  improper  location,  construction  and  maintenance 
of  their  lines  along  the  highways,  to  persons  using  them.  After  this 
we  shall  say  something  of  injuries  suffered  by  their  employees. 

§  185.     Same  continued — injury  on  highways. 

Telegraph  and  telephone  companies  must  exercise  reasonable  care 
not  only  in  the  original  location  and  construction  of  their  lines,  but 
must  maintain  them  in  such  a  manner  as  to  prevent  injuries  to  per- 
sons using  the  streets  and  highways ;  and  on  a  failure  so  to  do,  where- 
by injury  arises,  they  will  be  liable  for  all  injuries  resulting  from 
such  breach  of  duty.^     In  the  first  place,  these  companies  must  exer- 

^  England.— HoWidnj  v.  National  Tel.  etc.,  Co.,  41  La.  Ann.  1041,  6  So.  797. 

Co.,  2  Q.  B.  302.  Maine. — Dickey     v.     Maine  Tel.  Co., 

United  States.— Sheffield     v.  Central  46  Me.  483. 

U.  Tel.  Co.,  36  Fed.  164;  Wolfe  v.  Erie  Maryland. — Lee  v.     Maryland     Tel., 

Tel.  Co.,  33  Fed.  320;  Henning  v.  West.  etc.,  Co.,  55  Atl.  680. 

U.  Tel.  Co.,  43  Fed.  131;  Southwestern  Massachusetts. — Thomas  v.  West,  U. 

Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810.  Tel.  Co.,  100  Mass.  156;  Sices  v.  Low- 

Alabama.—Fosta.\  Tel.  Cable    Co.    v.  ell,  etc.,  St.  R.  Co.,  179  Mass.  343,  60 

Jones,  133  Ala.  217,  32  So.  500.  N.  E.  974. 

CoZorado.— West.    U.    Tel.   Co.   v.Ey-  Michigan.— B.ovej     v.  Michigan  Tel. 

ser,  2  Cole  141.  Co.,  124  Mich.  607,  83     N.     W.     600; 

District  of    Columbia.  —  District  of  Keyes  v.  Valley  Tel.  Co.,  93  N.  W.  623 ; 

Columbia  v.  Dempsey,     13     App.     Cas.  Friesenham  v.  Michigan  Tel.  Co.,  96  N. 

(D.  C.)    533.  W.   501;    Chaflfee  v.   Tel.,   etc.,   Constr. 

/Hmots.— Cumberiand  Tel.,  etc.,    Co.  Co.,  77  Mich.  625,  18  Am.  St.  Rep.  424, 

V.  Coats,   100  111.  App.  519    (no  negli-  6  L.  R.  A.  455. 

gence  shown).  Missouri. — Larkin  v.  West.    U.    Tel. 

Znditma.— West.  U.  Tel.  Co.  v.  Levi,  Co.,  82  Mo.  App.   155. 

47  Ind.  'i52;     Brush     Electric  Lighting  New  Jersey.  —  New  York,  etc.,  Tel. 

Co.  V.  Kelley,  126  Ind.  220,   10  L.  R.  Co.  v.  Bennett,  62  N.  J.  L.  742,  42  Atl. 

A.  250    5  N.  E.  812.  750;    Chalmers  v.   Patterson,  etc.,  Tel. 

Louisiana.— Wilson  v.     Great     Tel.,  Co.,  66  N.  J.  L.  41,  48  Atl.  991. 


§    185]  LIABILITY   FOR  INJUKIIiS.  175 

cise  reasonable  care  in  selecting  a  proper  location  on  which  to  con- 
struct their  lines,  and  should  they  carelessly  place  them  upon  prop- 
erty for  which  they  have  no  authority,  or  if  they  once  had  the  author- 
ity to  place  them  on  said  property  but  have  since  lost  it,  they  be- 
come a  nuisance  with  respect  to  such  property,  and  if  an  injury  is 
caused  thereby,  the  company  will  undoubtedly  be  liable  for  such  in- 
jury.- When  the  location  has  been  properly  made,  then  it  devolves 
upon  them  to  use  due  care  in  the  construction  of  their  lines,  so  as  not 
to  endanger  the  public  with  any  faulty  material  or  structure,  or  the 
manner  in  which  they  are  constructed.  Xot  only  is  it  the  duty  of 
these  companies  to  properly  locate  and  construct  their  lines,  but  they 
must  also  use  the  same  degree  of  care  to  maintain  them  as  long  as 
they  are  used  as  was  exercised  in  their  construction.  In  other  words, 
the  location  of  these  lines  must  be  kept  properly  maintained.  Should 
the  location  once  have  been  properly  selected  and  for  any  reason  has 
since  been  neglected  or  destroyed,  another  must  be  made ;  and  should 
the  material  out  of  which  the  lines  are  constructed  become  old,  worn, 
decayed  or  cumbersome,  it  should  be  removed  and  the  best  and  most 
up-to-date  structures  erected  and  used  in  lieu  of  these.  To  be  more 

yew  rorA-.— Flood  v.  West.  U.  Tel.  Zappi,  93  Tenn.  3Gi),  24  S.  W.  633; 
Co.,  15  N.  Y.  Supp.  400;  Gordon  v.  Cumberland  Tel.,  etc.,  Co.  v.  Cook,  103 
Ashley,  34  Misc.  (N.  Y.)  743;  Leeds  Tenn.  730,  55  S.  W.  152;  Cumberland 
V.  New  York  Tel.  Co.,  64  N.  Y.  App.  Tel.,  etc.,  Co.  v.  Hunt,  108  Tenn.  097, 
Div.  484;  Sheldon  v.  West.  U.  Tel.  Co.,  69  S.  W.  729;  United  Electric  R.  Co. 
51  Hun  (X.  Y.).591.  See,  also,  Ward  v.  Shelton,  89  Tenn.  423,  14  S.  W. 
V.  Atlantic,  etc.,  Tel.  Co.,  71  N.  Y.  81,  863,  24  Am.  St.  Rep.  614. 
27  Am.  Rep.  10;  Leeds  v.  New  York  Texas. — Postal  Tel.  Cable  Co.  v. 
Tel.  Co.,  32  Misc.  (N.  Y.)  App.  Div.  Coate,  57  S.  W.  912;  Wehner  v.  Loyer- 
121.  felt,  27  Tex.  Civ.  App.  520;  South- 
Oregon. — Chaperon  v.  Portland  Gm.  western  Tel.,  etc.,  Co.  v.  Ingi-ands,  27 
Electric  Co.,  41  Oregon  39,  67  Pac.  Tex.  Civ.  App.  400. 
928.  Virginia. — Watts  v.  Southern  Bell 
Pennsylvania.  —  Pennsylvania  Tel.  Tel.,  etc.,  Co.,  100  Va.  45,  3  Vt.  Sup. 
Co.  V.  Varnau,  15  Atl.  Rep.  624;  Cen-  Ct.  577,  40  S.  E.  107. 
tral  Pennsylvania,  etc.,  Co.  v.  Wilker-  West  Virgiiiia. — Hanimum  v.  Hill, 
son,  etc.,  R.  Co.,  11  Pa.  Co.  a.  417.  52  W.  Va.  166,  43  S.  E.  223. 

Rhode  Island. — McDonald     v.  Postal  Wisconsin. — Roberts     v.      Wisconsin 

Tel.  Co.,  22  R.  I.  131,  46  Atl.  407.  Tel.  Co.,  77  Wis.  589,  20  Am.  St.  Rep. 

South     Carolina.— MUes     v.     Postal  143,  46  N.  W.  800, 

Tel.   Cable  Co.,   55   S.   Car.   403,   33   S.  =  Southern  Bell  Tel.,  etc..  Co.  v.  Mc- 

E.  493.  Tver.   137   Ala.     601,     34  So.   1020.  97 

Tennessee.— Postal  Tel.   Cable  Co.  v.  Am.   St.  Rep.   62. 


176 


TELEGRAPH   A^'D    TELEPPIOXE    COMPANIES. 


[^  185 


explicit,  the  streets  and  liiiilnvavs  should  be  substantially  as  safe  after 
they  are  occupied  bj  these  companies  as  they  were  before  these  lines 
were  constructed  thereon.^  Telegraph  and  telephone  business  being  a 
legitimate  one,  though  involving  peril  to  others,  its  prosecution  with 
the  care  that  a  man  of  prudence  would  exercise  in  view  of  its  char- 
acter would  not  entail  liability,  for  injuries  which  may  result,  not- 
witlistanding  the  exercise  of  such  due  care;*  but  the  amount  of  car^' 
must  be  proportionate  to  the  amount  of  danger  and  the  liability  of 
accident." 

§  186.     Same  continued — abandonment — no  defense. 

It  is  no  defense  for  a  company  to  say  that  the  property  which 
caused  the  injury  has  been  abandoned  or  is  not  in  use.  For  instance, 
where  a  person  was  injured  by  pieces  of  cut  wire  left  in  the  street  ;** 
or  where  the  telephone  instruments  are  removed  from  a  building,  but 


'West.  U.  Tel.  Co.  v.  State,  82  Ma- 
ryland, 293,  .33  Atl.  703,  .51  Am.  St. 
Eep.  464,  31  L.  R.  A.  .512n. 

*  Southern  Bell,  etc.,  Co.  v.  McTyre, 
137  Ala.  GOl,  34  So.  1020,  97  Am.  St. 
Hep.  62. 

MVard  V.  Atlantic,  etc.,  Tel.  Co.  71 
X.  Y.  81,  27  Am.  Rep.  10. 

"  The  court  in  rendering  an  opinion 
on  this  subject  has  the  following  to 
say:  "The  same  rule  would  apply  when 
after  erections  are  properly  made  the 
company  negligently  suffers  them  to 
fall  down  or  to  be  out  of  repair  or  to 
remain  so  after  reasonable  notice.  It 
was  as  much  its  duty  safely  to  main- 
tain as  it  was  safely  to  erect.  Wliether 
the  unsafe  condition  was  or  was  not 
in  its  inception  the  result  of  a  cause 
for  which  the  company  was  responsible 
is  only  material  in  determining  when 
the  negligence  began  and  in  what  it  con- 
sisted. If  it  was  the  result  of  negli- 
gent construction  this  would  constitute 
the  negligence.  On  the  other  hand  if, 
as  in  this  case,  the  unsafe  condition 
was  the  result  of  a  cause  for  which  the 
company  was  not  at  all  responsible  the 


negligence  consists,  not  in  the  fact  that 
the  wires  fell  into  the  street,  but  in 
the  fact  that  they  were  allowed  to  re- 
main there  after  reasonable  notice  to 
the  company  and  the  lapse  of  svifficient 
time  within  which  to  remove  them. 
The  duty  of  the  company  in  such  a  case 
it  seems  to  us,  is  not  at  all  dependent 
upon  the  nature  of  the  cause  which 
produced  the  unsafe  condition.  So  far 
as  the  duty  of  removing  the  wires  from 
the  street  was  concerned  it  was  imma- 
terial whether  their  fall  was  the  result 
of  natural  decay,  of  a  malicious  and 
unlawful  act  of  some  third  person,  of 
some  extraordinary  force  of  nature,  or. 
as  in  this  case,  of  the  freezing  of  water 
thrown  upon  the  cross-bars  by  the  fire 
department.  Nor  could  the  company 
which  had  placed  its  property  on  a  pub- 
lie  street  under  a  license  from  the  city, 
relieve  itself  of  this  duty  by  assuming 
tn  abandon  it,  when  from  natural  wear 
or  sudden  casualty  it  had  ceased  to  be 
valuable  for  the  purpose  for  which  it' 
had  been  placed  there."  Nicholds  v. 
City  of  Minneapolis,  33  Minn.  430,  r)3 
Am.  Rep.  56. 


<^    187]  LIAIJILITV    hOK   l.\  J  LlilKS.  177 

instead  of  removing  its  wires  as  suggested  by  the  owner,  they  are 
merely  cnt  loose  from  the  instrument  and  their  ends  twisted  together 
and  left  dangling  in  the  building,  so  that  atmospheric  electricity, 
striking  somewhere  along  their  course  on  the  outside,  will  be  in- 
ducted into  the  building  and  there  discharged  to  the  peril  of  persons 
and  property  therein ;'  or  where  one  of  its  wires  becomes  broken  and 
is  allowed  to  remain  swinging  across  a  feed  wire  of  a  street  railway 
company  for  an  unreasonable  time,  and  a  person  comes  in  contact 
with  it  when  charged  from  the  said  feed  wire  and  is  injured  thereby ; 
or  if  its  wires  are  allowed  to  remain  coiled  on  the  highway  an  unrea- 
sonable time  after  the  company  has  notice  of  same,  and  it  frightens 
teams  and  causes  them  to  run  away  and  injure  any  person  or  prop- 
erty, or  if  they  should  become  entangled  therein  to  their  injury;  or 
if  their  abandoned  property  in  any  way  causes  an  injuiy  to  persons 
or  property,  the  fact  of  the  abandonment  of  such  property  cannot  be 
set  up  as  a  defense.^ 

§  187.     Same  continued — strength  and  stability  of  poles. 

The  strength  and  stability  which  poles  fur  telegraph  and  telephone 
companies  should  have,  depends  somewhat  upon  the  locality  in  which 
they  are  erected,  and  the  number  of  wires  they  are  supposed  to  hold. 
For  instance,  if  there  are  a  great  number  of  wires  to  be  supported, 
as  is  generally  the  ease  in  towns  and  cities,  the  poles  should  be  much 
stronger  and  more  firmly  planted  in  the  ground  than  they  otherwise 
would  have  to  be.  The  conditions  of  the  country  through  which  they 
are  constructed,  with  respect  to  winds  and  storms,  should  be  consid- 
ered, since  a  pole  which  might  be  very  substantial  in  a  country  where 
there  are  few,  if  any,  storms,  would  not  be  suitable  in  a  country  sub- 
ject to  such  climatic  changes.  While  these  companies  are  duty  bound 
to  the  public  to  have  poles  with  sufficient  strength  to  withstiind  the 
changes  of  the  climate  which  are  reasonably  expected  to  be  suffered 
in  that  particular  region,  yet  they  are  not  bound  to  construct  or  man- 
age the  lines  so  as  to  guard  against  storms  of  unusual  severity,  the 

•  Southern  Bell  Tel.,  etc.,  Co.  v.  ^\c-  200  Pa.  St.  540,  86  Am.  St.  Rep.  732. 
Tyer,  137  Ala.  COl,  34  So.  1020:   Fitz-       50  All.  Kil. 

gerald    v.    Edison    Electric,    etc.,    Co.,  "*  Xicliolds   v.    Minneapolis,   33    Minn. 

430,  53  Ain.  Rep.  50. 
T.  &  T.— 12 


178  TELEGRAPH   AND    TELEPHONE    COMPANIES.  [§    187 

occurrence  of  which  could  not  be  reasonably  expected.  They  must, 
however,  be  strong  enough  to  withstand  such  violent  storms  as  may  be 
reasonably  expected  or  such  as  reasonable  foresight  and  prudence 
could  anticipate.^  iSTot  only  should  the  poles  be  sufficiently  strong — 
and  speaking  on  this  subject,  the  same  rule  is  applied  to  the  cross- 
arms — at  the  time  they  are  erected  to  hold  up  the  wires  and  endure 
and  withstand  anticipated  and  reasonable  climatic  changes,  but  they 
must  also  be  durable,  or  made  to  be  such ;  since,  as  is  well  known,  the 
life  of  these  poles  is  short,  if  these  companies  were  permitted  to  al- 
low their  poles  to  become  weakened  by  decay,  or,  in  other  words,  if 
they  were  not  duty  bound  to  maintain  their  lines,  they  would  avoid 
many  responsibilities. 

§  188.     Same  continued — failure  to  restore  line  after  storm. 

Following  the  previous  statements,  it  is  incumbent  upon  these  com- 
panies to  restore  and  repair  their  lines  within  a  reasonable  time  after 
a  violent  storm,  and  on  failure  to  do  so,  whereby  injury  results,  the 
company  will  become  liable.  ^^  Broken  and  hanging  wires  are  dan- 
gerous at  any  time,^^  and  more  especially  during  thunderstorms. 
Science  and  common  experience  show  tliat  wires  suspended  in  the  at- 
mosphere attract  electricity  during  storms,  and  when  so  suspended 
and  not  insulated  are  dangerous  to  persons  who  may  at  such  times  be 
brought  in  contact  with  them.^-  True,  this  may  be  considered  to 
be  a  new  force  of  power  which  interfered,  with  the  production  of 
which  the  telephone  company  had  nothing  to  do,  but  the  new  force 
of  power  here  would  have  been  harmless  but  for  the  displaced  wires ; 
and  the  fact  that  the  wire  took  on  a  new  force,  with  the  creation  of 
which  the  company  was  not  responsible,  contributed  no  less  directly 
to  the  injury  on  that  account. ^=^     Setting  aside  the  dangerous  prop- 

»Waid  V.  Atlantic,  etc.,  Tel.  Co.,  71  Fitch  v.   Central   New  York  Tel.,  etc., 

N.  Y.  81,  27  Am.  Rep.  10;  Billinger  v.  Co..  42  N.  Y.  App.  Div.,  321. 

New  York,  etc.,  R.  Co.,  23  N.  Y.  42;  '^Henning  v.   West.   U.   Tel.   Co.,   43 

Mayor  v.  Bailey,  2  Denio.  433;  Ricker  Fed.  131. 

V.    New  York,   etc.,   R.   Co.,   64   N.   Y.  "  Southwestern  Tel.,  etc.,  Co.  v.  Rob- 

App.  Div.  357;  Southwestern  Tel.,  etc.,  inson,  50  Fed.  810. 

Co.  V.  Ingrands,  27  Tex.  Civ.  App.  400.  '» Southwestern  Tel.,     etc.,     Co.,     v. 

"Southwestern  Tel.,  etc.,  Co.  v.  Rob-  Robinson,  50  Fed.  810;  Gleeson  v.  Vir- 

inson,  50  Fed.   810;    Cumberland  Tel.,  ginia  Midland  R.  Co.,   140  U.   S.   435, 

etc.,  Co.  V.  Hunt,   108  Tenn.  697.     See  11    S.   Ct.  Rep.   859. 


*§     189]  LIABILITY    I'OK   lAJUUIES.  179 

sitions  arising  from  tliimdorstorms  these  wires  which  are  left  unre- 
paired after  such  storms  may  still  be  very  dangerous.  Thus,  where 
a  wire  is  left  suspended  near  the  public  highway  where  a  person 
would  likely  come  in  contact  with  it  on  a  dark  night  ;^'*  or  even  where 
it  is  left  so  as  to  interfere  with  travel  at  any  time,  it  would  then  be- 
come a  nuisance  for  which  the  company  would  be  liable  for  any  in- 
jury arising  therefrom.  Of  course,  the  company  must  have  a  rea- 
sonable time,  after  a  displacement  of  Avires  caused  by  storms,  to  reach 
and  repair  the  dangerous  parts.  What  is  a  reasonable  time  depends 
somewhat  upon  surrounding  circumstances.  We  understand  that 
these  companies  have  instruments  in  their  offices  by  which  they  may 
be  enabled  to  make  an  approximate  calculation  of  the  place  at  which 
the  line  is  broken ;  at  any  rate  if  this  cannot  be  determined,  the  oper- 
ators surely  can  easily  determine  that  the  wire  is  either  broken  or 
out  of  line,  by  reason  of  the  fact  that  messages  cannot  be  sent  over 
it;  and  as  soon  as  the  fact  is  ascertained,  it  is  the  duty  of  the  com- 
pany to  restore  the  line  immediately.  If  the  line  should  not  be  broken 
or  crossed,  but  only  hanging  loose  from  the  insulators,  messages  could 
still  he  sent  over  the  line  without  any  hindrance  and  without  the  oper- 
ators knowing  anything  about  their  being  down.  Under  such  circum- 
stances, the  company  may  not  know  of  the  danger  in  such  wnres,  but 
as  soon  as  it  obtains  the  knowledge  of  the  defect  in  the  line,  it  is  the 
<iuty  of  the  company  to  restore  it  w^ithin  a  reasonable  time. 

§  189.     Same   continued — crossing  highways  and   railroads. 

It  is  the  duty  of  these  companies  to  construct  their  lines  sufficiently 
high  when  crossing  streets,  highways  and  railroad  tracks  as  not  to 
interfere  with  travel  or  the  working  of  the  employees  of  railroad 
companies.  In  towns  and  cities  it  often  happens  that  vehicles  travel 
the  streets  with  loads  reaching  rather  high  from  the  pavement,  and 
in  order  that  any  property  or  person  should  not  be  injured  by  the 
coming  in  contact  of  such  vehicles  witli  the  lines  of  these  companies 
crossing  the  streets,  they  should  be  constructed  and  kept  reasonably 
high  to  avoid  all  such  occurrences ;  on  a  failure  to  do  so  the  company 
w'ill  be  liable.    The  same  duty  is  imposed  upon  such  companies  whose 

'*Ahem  v.  Oregon  Tel.,  etc.,  Co.,  4\  Postal  Tel.  CaM.^  Co.  v.  Zappi.  24  S. 

Am.  &  Eng.  Corp.  Cas.  3GG.  W.  G8S. 


180  TELEGRAPH   AXI)    TELEPHONE    COMPANIES.  [<§    189 

wires  are  crossing  the  country  liigliwajs;  but  there  may  be  some  vari- 
ances allowed  with  respect  to  the  height  of  wires  crossing  country 
highways. ^^  It  is  veiy  often  the  case  that  telegraph  lines  cross  and 
recross  railroad  tracks;  when  they  do,  the  wires  should  be  stretched 
sufficiently  high  at  these  places  as  not  to  interfere  with  the  running 
of  trains,  or  to  endanger  the  employees  of  the  railroad  companies.^** 

§  190.     Same  continued — falling  poles  and  other  fixtures. 

This  subject  might  have  been  treated  under  some  of  the  previously 
discussed  subjects,  but  as  it  is  not,  we  shall  say  something  about  it 
here.  These  companies  must  construct  and  maintain  their  poles  so 
as  not  to  endanger  the  public  generally,  or  other  public  enterprises. 
In  the  first  place,  they  must  be  located  so  as  not  to  incommode  the 
public  unnecessarily;^^  and  if  they  have  a  license  from  a  city  to  con- 
struct them  on  the  streets,  they  will  not  be  declared  a  nuisance.  But 
if  they  clearly  appear  to  be  improperly  located  ^^  thereon,  and  injury 
results  therefrom,  the  company  will  be  liable  notwithstanding  the 
fact  that  it  has  a  license  from  the  city  to  construct  the  poles  at  such 
places  ;^^  in  this  case,  it  would  be  jointly  liable  with  the  city.""  The 
location  may  be  properly  made,  but  if  its  supporters  are  in  such  a 
manner  as  to  cause  injury,  the  company  will  still  be  liable.  Thus, 
where  the  guy  wire  which  supports  the  pole  is  swinging  so  low  as 
not  to  permit  a  fire  engine  with  its  crew,  which  is  rushing  to  the 
scene  of  a  fire,  to  pass  thereunder,  the  company  will  be  liable,  even 
though  this  wire  is  attached  to  a  pole  erected  on  neutral  gTound.-^ 
Further,  the  poles  should  be  sufficiently  strong  within  themselves  to 

'=  Postal  Tel.  Cable  Co.  v.   Jones,  32  '"  Keasby  on  Electric  Wires,  p.     154; 

So.    (Ala.)    .500.  Kowalslcy  v.   Newark  Pass.   R.  Co.,   15 

'*  American   Tel.,   etc.,   Co.   v.   Kersh,  X.   J.   L.   50;   Wolfe   v.   Erie  Tel.,  etc., 

27  Tex.  Civ.  App.  127.  Co.,  33  Fed.  320. 

"Sheffield  v.  Central  U.  Tel.  Co.,  30  =" Atkinson   v.    Clieatliam,      20      Ont. 

Fed.   164.  App.  521;   Geneva  v.     Brush     Electric 

"Wolfe  V.  Erie  Tel.,  etc.,  Co.,  33  Fed.  Co.,  50  Hun     (X.  Y.)    581.       See     also 

320;    Bonn   v.    Bell    Tel.    Co.,    30    Ont.  Xicholds  v.  :\rinneapolis,  33  Minn.  430. 

696;    Xebraska    Tel.    Co.    v.    Jones,    60  53  Am.  Rep.  56,  23  X.  W.  868. 

Xeb.  396,  83  X.  W.   197;   Kowalski  v.  =' Wilson  v.  Great  Southern  Tel.,  etc., 

Newark,  Passenger  R.  Co.,  15  N.  J.  X.  Co.,  6  So.  781. 
50;  West.  U.  Tel.  Co.  v.  Eysir,  2  Colo. 
141. 


<5>   192]  liahility  for  ixjuries.  181 

sustain  the  weight  of  the  wires.  For  instance,  a  telephone  company 
is  not  relieved  from  liability  for  injuries  to  a  person  owin^r  to  the 
falling  of  one  of  its  poles  of  insuffioicnf  strencfth  hy  the  fact  that  the 
cutting  of  guy  wires  attafhecl  to  a  hnilding  by  the  owner  thereof,  af- 
ter he  had  revoked  his  license,  contributed  to  the  falling  of  the  pole.^- 
And  they  will  continue  to  be  responsible  for  injuries  arising  from 
an  improper  maintenance,  although  the  system  is  to  be  maintained  by 
another;  as  where  the  crossarms  were  maintained  on  a  company's 
poles  by  another,  it  is  nevertheless  liable  for  injuries  occasioned  by 
the  falling  of  an  insulator  therefrom,  since  the  injury  from  such 
a  cause  might  reasonably  be  contemplated.^^ 

§  191.     Obstruction  to  navigation  by  cable. 

A  telegTaph  company,  w-hose  cables  are  laid  in  the  soft  mud  or 
soil  and  the  bottom  of  a  navigable  river,  in  such  a  manner  as  to  in- 
terfere with  vessels  which  are  accustomed  to  plow  through  the  mud 
in  their  movements  about  the  docks,  thereby  obstructing  navigation 
contrary  to  the  acts  of  Congress^^  which  authorize  any  telegraph  com- 
pany to  lay  telegraph  lines  over,  under  or  across  the  navigable 
streams  and  waters  of  the  United  States  provided  they  are  "so  con- 
structed and  maintained  as  not  to  obstruct  the  navigation  of  sucli 
streams  or  waters;"  is  answerable  for  damages  thereby  to  said  ves- 
sels-'-s 

§  192.     Negligence — the  basis  of  such  actions. 

It  will  be  seen  from  the  foregoing  discussions  on  the  subject  of 
the  liability  of  telegi-aph  and  telephone  companies  for  injuries  caused 
by  improper  location  and  maintenance  of  their  lines,  that  negligence 
on  the  part  of  the  company  is  the  basis  of  such  actions ;  and  there  can 
be  no  recovery  in  the  absence  of  proof  of  it.^*^     The  company  will  not 

-Johnson  v.  Northv.'estem  Tel.  Exch.  lantic,  etc.,  Tel.   Co.,  21   Hun    (X.   Y.) 

Co.,  .51  N.  W.  225.  22;  Monahan  v.  Miami  Tel,  Co.,  9  Ohio 

=°  Quill  V.  Empire  State  Tel.  Co..   13  Die.  532,  7  Ohio  N.  P.  95;   Barnett  v. 

Misc.   (N.  Y.)   435.  Independent  Tel.  Co..  G5  S.  W.     1128: 

-*  Rev.  St.  U.  S.  §  5263.  Roberts  »'.  Wisconsin  Tel.  Co.,  77  Wis. 

"West.   U.   Tel.   Co.  v.   Tinman,  etc.,  589,   4G   N.   W.   800.   20   Am.    St.   Rep. 

Co.,  43  Fed.  85.  143;  see  also  Lee  v.  Maryland  Tel.  etc., 

="  Cumberland      Tel.,      etc.,      Co.     v.  Co.,  55  Atl.  680. 
Coats,   100  111.  App.  519;   Allen  v.  At- 


182  TELEGRAPH   A^'D    TELEPHOiS'E    COMPANIES.  [§    192 

be  liable  when  the  jDroximate  cause  of  the  injury  is  some  agency  other 
than  its  own  negligence ;  as  where  the  proximate  cause  of  the  break- 
ing of  a  telegraph  pole  was  the  collision  therewith  by  a  runaway  team 
of  horses,  in  which  case  it  was  held  that  the  telegraph  company  was 
not  liable  for  the  damages  caused  by  the  fall  of  the  pole  which  was 
so  placed  as  to  render  collision  with  it  impossible.^''  While  there 
must  be  negligence  in  order  that  the  company  may  be  held  liable,  and 
proof  of  that  fact,  yet  tlie  negligence  may  be  presumed;-^  as,  in 
some  cases,  the  facts,  when  undisputed,  may  be  so  strong  as  that  the 
company  will  be  guilty  of  negligence  per  se.-^  "When  this  is  the 
case,  it  is  a  question  of  law  to  be  decided  by  the  court ;""  but  if  the 
facts  are  disputed,  the  negligence  then  becomes  a  mixed  question  of 
law  and  fact.^^ 

§  193.     Negligence — what  constitutes. 

In  discussing  the  question  of  negligence,  it  might  be  well  to  con- 
sider what  is  meant  by  the  term  ''negligence,"  or  what  is  necessary 
to  constitute  negligence.  It  was  said  by  an  eminent  jurist  in  discuss- 
ing the  question  of  actionable  negligence,  or  negligence  which  con- 
stitutes a  o-ood  cause  of  action :  "There  are  necessarily  three  elements 
essential  to  its  existence:  the  existence  of  a  duty  on  the  part  of  the 
defendant  to  protect  the  plaintiff  from  the  injurs^  of  which  he  com- 
plains ;  a  failure  by  the  defendant  to  perform  that  duty ;  and  an  in- 
jury to  the  plaintiff  from  such  failure  of  the  defendant."  ^^    In  the 

-•Allen  V.  Atlantic,  etc.,  Tel.  Co.,  21  ="  Roberts   v.   Wisconsin   Tel.    Co.,   77 

Hun     (N.  Y.)    22.     See,  also,  Henning  Wis.  589,  20  Am.  St.  Rep.   143,  46  N. 

V.  West.  U.  Tel.  Co.,  43  Fed.  131;  Da-  W.  800. 

vis  V.  Dudley,  4  Allen   (:\lass.)   557.  ^^  Southwestern  Tel.,  etc.,  Co.  v.  Rob- 

^  West.  U.  Tel.  Co.  v.  State,  82  Mary-  inson,  50  Fed.  810,  16  L.  R.  A.  545. 

land  293,  83  Atl.  763,  31  L.  R.  A.  572n,  =^  Faris  v.  Hoberg,   134   Ind.   269,   30 

51  Am.  St.  Rep.  464;  Note  to  Hart  v.  Am.  Rep.  261;   33  N.  E.  1028;   Gibson 

Washington  Park  Club,  48     Am.     St.  v.  Leonard,  143  111.  182,  32  N.  E.  182, 

Rep.  305.     See  extended  note  to  Long  17  L.  R.  A.  588,  36  Am.  St.  Rep.  376; 

V.  Penn.  R.  Co.,  30  Am.  St.  Rep.  136 ;  Gunn  v.  Ohio,  etc.,  R.  Co.,  36  W.  Va. 

see,  also,   Haynes  v.   Raleigh   Gas   Co.,  165,    14    S.    E.    465,    32    Am.    St.    Rep. 

114  N.  C.  203,  41  Am.  St.  Rep.  786,  26  842;    Montgomery  v.   Muskegon  Boom- 

L.  R.  A.  810,  19  S.  E.  344.  ing  Co.,   88   Mich.   635,   50  N.  W.  729, 

=»  Southern  Bell  Tel.,  etc.,  Co.  v.  Mc-  26   Am.   St.   Rep.   308;    Roddy  v.   Mis- 

Tyer,    137    Ala.    601,    34    So.    1020,    97  souri  Pac.  R.  Co.,   104  Mo.  234,   15   S. 

Am.  St.  Rep.  62.  W.    1112,  24  Am.   St.   Rep.   333,   12   L. 

R.  A.  746. 


<^    194]  LIAI5ILITY   i-OK    IXJUKIES.  183 

first  place,  it  is  the  duty  of  these  companies  to  so  construct  and 
maintain  their  lines  as  not  to  endanger  the  public.  This  is  a  duty 
imposed  on  all  enterprises  which  undertake  to  carry  on  a  public  bus- 
iness; and  the  courts  will,  therefore,  take  judicial  notice  that  it  is 
the  duty  of  telegraph  and  telephone  companies  to  exercise  care  to 
prevent  their  lines  from  interfering  with  or  endangering  public 
travel.^^'  Tf  it  were  not  a  duty  of  these  companies  to  maintain  their 
lines  so  as  not  to  endanger  the  public,  they  could  not  be  guilty  of 
negligence  in  this  respect;  for  this,  as  said  above,  is  one  of  the  nec- 
essary elements  of  negligence.  There  may  be  instances  cited  where 
an  injury  has  been  inflicted  by  some  cause  for  which  these  companies 
would  not  be  liable,  in  that  they  were  not  under  any  obligations  to 
protect  the  injured  party  from  such  injury ;  or  that  it  was  not  their 
duty  to  use  ordinary  care  to  prevent  the  proximate  cause;  but  it  is 
unquestionably  their  duty  to  construct  and  maintain  their  lines  in 
such  a  manner  as  not  to  endanger  the  public.  Corporations  are  just 
as  liable  to  violate  the  laws  or  commit  wrongs  as  individuals,  and  if 
there  were  no  means  by  which  they  could  be  punished  for  such  viola- 
tion, or  no  remedy  to  right  the  wrong,  the  reader  can  easily  see  what 
the  results  would  be.  In  other  words,  if  these  companies  were  al- 
lowed to  carry  on  their  business  in  a  harum-scarum,  slipshod  man- 
ner, the  public  would  be  continuously  thro^\Ti  in"  hazardous  places 
without  any  protection  from  these  companies.  Therefore,  for  public 
policy  these  companies  are  enforced  to  exercise  due  care  to  construct 
and  maintain  their  lines  in  such  manner  as  not  to  interfere  with  or 
endanger  the  ])ublic. 

§  194.     Same  continued — failure  to  perform  duty. 

In  order  for  the  injured  party  to  recover,  it  must  be  further  shown 
that  the  company  has  failed  to  perform  the  duty  of  constructing  and 
maintaining  its  lines  in  a  proper  manner;  and  among  the  three  ele- 
ments necessaiy  to  constitute  the  existence  of  negligence,  this  is  the 
most  essential  one  to  be  proven.  As  said  in  the  preceding  paragraph, 
the  courts  will  take  judicial  notice  of  the  duties  of  these  companies 
toward  the  public  with  respect  to  the  construction  and  maintenance 
of  their  lines  but  it  must  be  shown  by  some  kind  of  testimony  that  the 

«*  Postal  Tel.  Cable  Co.  v.   Jones,  32       So.  500. 


184  TELEGRAPH   AXD    TELEPHONE    COMPANIES.  \_^    101 

failure  on  their  part  to  perform  sneh  duties  was  the  cause  of  the  in- 
jury. The  proof  of  such  faihire  niav  be  a  mixed  question  of  law  and 
fact,^*  but  if  the  proof  of  such  faihire  is  undisputed  and  it  is  suffi- 
ciently clear  that  the  duty  has  not  been  performed,  the  court  should 
settle  the  case  as  a  question  of  law ;  or,  the  testimony  may  be  dis- 
puted and  still  it  would  be  a  question  of  law  to  be  settled  by  the  court. 
For  instance,  if  a  wire  is  left  swinging  across  the  streets  for  several 
days,  to  the  knowledge  of  the  company  which  has  had  reasonable  time 
to  remove  it  but  fails  to  do  so,  whereby  injury  is  sustained,  the  court 
should  say  whether  the  company  has  failed  to  perfonn  its  duty;  and 
yet  this  might  be  a  question  for  the  jury,  where  there  is  doubt  as  to 
whether  the  company  has  had  a  reasonable  time  to  remedy  the  defect 
in  the  line.^^  In  some  cases,  it  may  be  presumed  that  the  company 
has  failed  to  perform  its  duty  in  maintaining  its  lines,^®  and  this 
presumption  may  arise  from  an  accident.  Thus,  if  the  circumstances 
are  of  such  a  nature  that  it  may  fairly  be  inferred  upon  the  most 
reasonable  probability  that  the  accident  was  caused  by  the  failure  of 
the  company  to  exercise  proper  precaution,  a  presumption  of  negli- 
gence arises.''*'^  And,  further,  the  facts  may  go  to  show  that  the  man- 
ner in  which  the  company's  lines  are  maintained,  were  such  within 
themselves,  as  to  give  the  court  the  power  to  decide  the  case ;  or,  in 
other  words,  the  company  may  be  guilty  of  negligence  per  se  for  the 
manner  in  which  it  constructs  and  maintains  its  lines.^^  Wliile  in 
some  cases  the  question  as  to  whether  or  not  the  company  has  failed 
to  perform  its  duty  in  properly  constructing  and  maintaining  its 
lines  may  be  so  clear  and  convincing  as  that  the  court  should  decide 

^  SoutliAvestern  Tel.  Co.  v.  Eobinson,  492,   48  Am.   St.  Eep.   298;   Howser  v. 

50  Fed.  SIO,  16  L.  R.  A.  588.  Cumberland,   etc.,  R.   Co.,  80  Md.   146, 

"Postal  Tel.   Cable  Co.  v.  Jones,   32  45  Am.  St.  Eep.  332,  27  L.  R.  A.  154, 

So.  500.  30  Atl.    906.        See    extended   notes    to 

*nVest.  U.  Tel.  Co.  v.  State,  82  :\I4.  Philadelphia,  etc.,  E.  Co.,  v.  Anderson, 

293,  83  Atl.  763,  51  Am.  St.  Rep.  464,  20  Am.  St.  Rep.  490;  Hunn  v.  Gohlen- 

31   L.   R.  A.   512n;   Haynes  v.   Raleigh  buck,  6  Am.  St.  Rep.  794;   Fleming  v. 

Gas   Co.,    114   N.   E.   203,   23   L.   R.   A.  Pittsburg,  etc.,  R.  Co.,  38  Am.  St.  Rep. 

810,  41   Am.   St.   Rep.  786;    Girandi  v.  837,  and  Long  v.  Pennsylvania  R.  Co.. 

Electric  Imp.  Co.,  107  Cal.  120,  48  Am.  730. 

St.  Rep.  114,  40  Pac.   108,  28  L.  R.  A.  ««  Southern  Bell,  etc.,  Tel.  Co..  v  Mc- 

590.  Tyer,    137    Ala.    601,    34    So.    1020,    97 

"  Hart  V.  Washington  Park  Club  Co.,  Am.  St.  Rep.  62. 
157   111.   0,  41   N.   E.   620,  29  L.  R.  A. 


^    195]  LIABILITY   FOR   IX JURIES.  185 

it  as  a  question  of  law,  yet  in  a  majority  of  cases  the  question  should 
be  left  to  the  detennination  of  a  jury,  as  there  are  almost  always  some 
controverted  facts  with  respect  to  the  failure  of  the  company  to  per- 
form its  duty.  In  some  instances,  as  will  hereafter  be  discussed,  it 
may  be  attempted  to  130  shown  that  the  party  sustained  his  injury  by 
his  own  contributory  negligence.  When  this  is  the  case  the  question 
can  only  be  settled  by  a  jury  after  having  been  properly  charged  as  to 
the  law  in  the  case. 

§  195.     Same  continued — an  injury  sustained. 

The  company  may  fail  to  perform  the  duty  of  maintaining  its 
lines,  which  it  is  under  obligation  to  the  public  to  perform,  but  still, 
if  there  is  no  injury  sustained  by  any  one  for  such  failure,  the  com- 
pany will  not  be  liable.  It  may  commit  a  wrong  or  violate  its  public 
duties,  for  which  the  public  may  have  recourse,  but  if  no  one  has 
sustained  an  injuiy,  or  if  his  injuries  are  no  greater  than  those  suf- 
fered by  the  public  in  general,  the  company  can  only  be  liable  for  a 
public  prosecution.  It  is  not  enough  that  the  party  should  ha\e  been 
injured,  but  the  injury  must  be  the  result  of  the  failure  on  the  part 
of  the  company  to  perform  its  duty,  and  this  failure  must  be  the  prox- 
imate cause  of  the  injury  and  not  some  agency  put  in  force  by  the 
negligence  of  another.^^  The  failure  of  the  company  to  perform  its 
duty  in  maintaining  its  lines  may  be  actionable  or  not  actionable. 
That  is,  it  may  proximately  inflict  an  injury,  or  it  may  result  harm- 
lessly, or  be  but  the  remote  cause  or  mere  condition  of  an  injurs-,  of 
which  some  intei'vening  act  or  negligence  is  the  efficient  and  proxi- 
mate cause.  It  follows,  therefore,  that  there  must  not  only  be  a 
casual  connection  between  the  said  failure  of  the  company  to  main- 
tain its  lines  properly,  or  the  negligence  complained  of  and  the  in- 
jury suffered,  but  the  connection  must  be  by  a  natural  and  unbroken 
sequence — without  intervening  efficient  causes — so  that  but  for  tlie 
negligence  of  the  company  the  injury  would  not  have  occurred.  It 
must  not  only  be  a  cause  but  it  must  be  the  proximate  cause ;  that  is, 
the  direct  and  immediate  cause  of  the  injury.-**'     Thus,  it  would  not 

^  Allen  V.  Atlantic,  etc.,  Tel.  Co..  21  Oil  Creek,  etc..  R.  Co.  v.  Keiphorn.  74 

Hun     (N.  Y.)    22.     See,  also,  Henning  Pa.  St.  320:  Louisiana  Mut.  Ins.  Co.  v. 

V.  West.  U.  Tel.  Co.,  43  Fed.  131;  Da-  Tweed,  7  ^Vall.   (U.  S.)  52;  Rockford  v. 

vis  V.  Dudley,  4  Allen   (Mass.)   557.  Tripp,   83    111.   247,  25   Am.   Rop.    3S1: 

'"  Shearman  and  Redfield  Nefr.,   §  20 ; 


1S6  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [<^    195 

be  liable  for  an  injury,  one  of  the  concurrent  causes  of  which  was 
the  presence  of  its  wires,  as  where  the  poles  and  wires  interfered  with 
the  operations  of  a  fire  company  and  prevented  the  extinguishment 
of  the  fire;"*^  nor  would  it  be  liable  for  an  injury  caused  by  a  broken 
pole  or  line,  when  the  defect  in  the  line  has  been  caused  by  a  severe 
storm  ;^-  but  if  the  defective  part  is  allowed  to  remain  unrepaired 
unreasonably  long,  and  a  new  force  intervened,  with  the  creation  of 
which  the  company  was  not  responsible  and  which  would  have  been 
harmless  but  for  the  defective  line,  the  company  will  be  liable  on 
the  ground  that  the  proximate  cause  was — not  altogether  the  defect 
in  the  line — the  negligence  in  repairing  the  line  within  a  reasonable 
time  after  the  breakage.'*^ 

§  196.     Evidence  of  negligence. 

In  the  absence  of  any  presumption  of  the  company's  negligence, 
the  injured  party  must  prove,  by  a  fair  preponderance  of  the  evi- 
dence, facts  which  establish  the  negligence  of  the  company  as  being 
the  proximate  cause  of  his  injury ;  *^  and  having  done  this,  he  is  en- 

Patah  V.  Covington,  17  B.  Mon.  (Ky.)  "  Saybolt  v.  New  York,  etc.,  R.  Co, 
722,  66  Am.  Dec.  186;  Tentin  v.  Hur-  95  N.  Y.  562,  47  Am.  Eep.  75;  Croud- 
ley,  98  Mass.  211,  93  Am.  Dec.  154;  all  v.  Goodrich  Transpt.  Co.,  16  Fed. 
Worcester  v.  Great  Falls  Mfg.  Co.,  41  75;  Allen  v.  Willard,  57  Pa.  St.  374; 
Me.  159,  66  Am.  Dec.  217;  Fairbanks  McCaig  v.  Erie  R.  Co.,  8  Hun.  (K  Y.) 
V.  Kerr,  70  Pa.  St.  86,  10  Am.  Rep.  599;  Searles  v.  Manhatton  R.  Co.,  101 
664;  Louisville,  etc.,  R.  Co.  v.  Gather-  N.  Y.  661;  Holbrook  v.  Utica,  etc.,  R. 
ic,  10  Lea.  (Tenn.)  432;  Donnell  v.  Co.,  12  N.  Y.  236,  64  Am.  Dec.  502; 
Jones,  17  Ala.  689,  52  Am.  Dec.  194;  New  Jersey  Steamboat  Co.,  47  N.  Y. 
Phillips  V.  Dickerson,  85  111.  11,  28  291;  Edgerton  v.  N.  Y.,  etc.,  R.  Co., 
Am.  St.  Rep.  609;  Lord  Bailiffs,  etc.,  39  N.  Y.  227;  Tooney  v.  Brighton,  etc., 
V.  Trinity  House,  39  L.  J.  Exch.  163.  R.  Co.,  3  C.  B.  N.  S.  146;  West.  U.  Tel. 

*^Chaffe  v.  Tel.,  etc..  Const.  Co.,  77  Co.   v.   Thorn,   64   Fed.   287;    Southern 

Mich.  625,  43  N.  W.  1064,  18  Am.  St.  Bell  Tel.,  etc.,  Co.  v.  Lynch    (Ga.)    20 

Rep.   424;   Nicholds  v.  Minneapolis,  33  S.   E.   500.       The    testimony     for    the 

Minn.  430,  53  Am.  Rep.  56,  23  N.  W.  plaintiff  tended  to   show  that  she  and 

868.  her    daughter    left    their    house    about 

"  Ward    V.    Atlantic,    etc.,    Pac.    Tel.  half-past   9  o'clock  at  night,     and     as 

Co.,  71  N.  Y.  81,  27  Am.  Rep.  10.  they   started     across     the   street  they 

*^  Southwestern  Tel.,  etc.,  Co.  v.  Rob-  stumbled  over  a  wire,  one  end  of  which 
inson,  50  Fed.  810;  Southwestern  Tel.  was  lying  loosely,  somewhat  coiled  up- 
etc,  Co.  V.  McTyer,  137  Ala.  601,  34  on  the  ground,  and  the  other  attach- 
So.   1020,   97  Am.   St.  Rep.   62.  ed    to   a    pole    of   the   defendant;    that 


^  rjo] 


LIABILITY  FOE  IX JURIES. 


187 


titled  to  recovev  except  in  those  jurisdictions  wliicli  hold  that  he  must 
also  take  the  burden  of  negativing  contributory  negligence  on  his 
own  part."*^  Where  the  burden  is  on  the  injured  party  to  prove  neg- 
ligence on  the  i^art  of  the  company,  it  generally  becomes  a  question 
to  be  decided  by  the  jury ;  as,  where  there  was  evidence  that  the  com- 
pany's wires  had  been  detached  from  a  pole  so  as  to  obstruct  a  high- 
way for  two  days  prior  to  an  injury  occasioned  thereby,  it  was  a  ques- 
tion for  the  jury  whether  or  not  the  company  had  exercised  due  care 
in  discovering  and  remedying  the  condition  of  the  wires.^"  Evidence 
to  the  effect  that  the  wire  became  detached  because  of  being  fas- 
tened to  a  rotten  arm,  was  sufficient  to  warrant  a  finding  that  the 


it  was  dark  and  raining;  that  botli 
of  them  were  tripjied  and  thrown  to 
the  ground;  that  plaintiff  was  assist- 
ed by  her  daughter  to  rise,  and  con- 
tinued across  the  street,  bought  goods, 
and  returned  to  the  house,  reaching 
there  about  twenty  minutes  after  she 
started  out;  and  that  the  loose  end  of 
the  wire  had  been  down  for  two  or 
three  Aveeks,  most  of  which  time  it  was 
tied  to  a  tree,  12  to  15  inches  above  the 
ground.  The  testimony  for  the  de- 
fendant tended  to  show  that  it  em- 
ployed six;  men,  whose  duties  were  con- 
stantly to  traverse  the  city  and  inspect 
and  repair,  when  necessary,  the  com- 
pany's wires,  there  being  about  3,000 
miles  of  them  in  Atlanta.  The  com- 
pany's manager  testified  that  they 
called  up  every  subscriber  in  the  city 
every  ten  days,  to  learn  whether  or  not 
the  wire  was  out  of  order  or  the  instru- 
ment broken,  and,  if  they  got  no  re- 
sponse, they  sent  a  man  to  find  out 
what  was  the  matter;  that  the  men 
thus  employed  are  experts,  and  readily 
notice  any  trouble  on  the  line  in  the 
street;  and  that  the  wires  sometimes 
are  broken  by  heavy  rains,  storms, 
cold  weather,  etc.  It  also  appeared  that 
none  of  tlie  company's  employees  had 
any  notice  that  there  was  a  wire  down 
at  the  place  in  question,  imtil  the  morn- 


ing succeeding  tlie  niglit  when  plaintill' 
claimed  to  have  been  hurt;  that  one 
of  them  testified  that  he  went  to  the 
store  of  one  of  plaintiff's  witnesses  on 
the  day  of  the  alleged  injury,  and  fixed 
a  telephone  there,  and  that  he  looked 
at  the  wires  just  below  that  place,  and 
saw  none  down;  that  this  store  was 
next  to  plaintiff's  residence.  Other  em- 
ployees cf  the  company  Avore  in  the 
same  vicinity  two  days  before,  and  the 
wires  wei-e  in  good  order,  so  far  as  they 
saw,  though  the  wire  might  have  been 
do\%Ti  without  their  seeing  it.  The 
testimony  for  the  company  further 
tended  to  show  that  the  plaintiff  was 
not  injured  nearly  so  seriously  as  she 
claimed,  and  it  was  held  that  the  evi- 
dence warranted  a  verdict  for  plaintiff. 

^  Cincinnati,  etc.,  R.  Co.  v.  Butler, 
103  Ind.  31,  2  N.  E.  138;  Hinckley  v. 
Cape  Cod  R.  Co.,  120  Mass.  257; 
State  V.  Maine  Cen.  R.  Co.,  76  Me. 
357,  49  Am.  Rep.  622;  Vicksburg  v. 
Hennessy,  54  Miss.  391;  Moore  v. 
Shreveport,  3  La.  Ann.  645;  Burton  v. 
Frink,  51  Conn.  342;  Greenleaf  v.  I. 
C.  R.  Co.,  29  Iowa  14,  4  Am.  Rep.  181 ; 
Missouri  Furnace  Co.  v.  Abend,  107 
111.  44,  47  Am.  Rep.  425. 

"Postal  Tel.  Cable  Co.  v.  Jones,  32 
So.  500. 


18S  TELEGRAPH   AISTD   TELEPHONE    COMPANIES,  [§    196 

use  of  the  cross-arm  was  negligence,  proximately  causing  plaintiff's 
injury."*"  But  the  question  of  admissibility  of  evidence  should  be 
left  to  the  court  to  decide  on  precedent  rulings;  as,  where  an  action 
for  damages  for  injuries  sustained  by  being  thrown  over  a  telephone 
wire,  it  is  a  question  for  the  court  as  to  whether  evidence  should  be 
admitted  to  show  that  shortly  after  the  accident  the  defendant  raised 
its  wires  at  that  point.  It  has  been  held  that  such  evidence  was  ad- 
missible.^^ Evidence  has  been  admitted  to  show  the  height  of  the 
wires  on  a  prior  day;^^  this  is  not,  however,  the  general  doctrine. ^*^ 
Upon  an  issue  as  to  the  soundness  of  certain  poles  which  had  fallen, 
it  is  error  to  admit  evidence  of  the  soundness  of  other  poles  near 
them,  without  showing  some  proof  that  their  condition  ought  to  be 
the  same  as  that  of  the  others.^^  Evidence  that  after  the  occurrence 
of  the  injury  the  company  repaired  the  place  where  the  injury  .oc- 
curred, or  discharged  a  negligent  servant,  is  inadmissible;  since  to 
admit  such  would  be  to  place  a  premium  upon  the  continuance  of  neg- 
ligence.^2  And  evidence  which  tends  to  prove  that  other  parties  had 
passed  safely  along  the  place  of  the  accident,  should  not  be  admitted, 
as  this  is  not  proof  of  the  exercise  of  proper  care  by  the  company.^-'^ 
But  evidence  may  be  admitted  to  show  that  others  received  injuries 

"Clairane  v.  West.  U.  Tel.   Co.,   40  etc.,   R.   Co.  v.   Clem,   123   Ind.    15,  23 

J.a.  Ann.  178.  3  So.  62,5.  N.   E.   965;   Ely  v.  St.  Louis,  etc.,  R. 

'*Penn.  Tel.  Co.  v.  Varnau  et  al.,  15  Co.  77  Mo.  34;  Dale  v.  Delaware,  etc., 

Atl.  624.  R.  Co.,  73  N.  Y.  471;  Morse  v.  Minne- 

*9Id.  apolis,   etc.,   R.   Co.,   30  Minn.   465,   16 

'"Nalley    v.  Hartford,    etc.,     Co.,  51  N.  W.  358;  Baird  v.  Dailey,  68  N.  Y. 

Conn.  524,  50  Am.  Rep.  47;  Delaney  v.  .j51,  15  Am.  Rep.  488. 

Hilton,  50  N.  Y.  Supt.     341,    44    Am.  ^'  West.  U.  Tel.  Co.  v.  Levi,  47  Ind. 

Rep.  649;  Hinkel  v.  Murr   31  Hun.   (N.  552. 

Y.)   28;  Martin  v.  Towe,  59  N.  H.  31;  "  Readman   v.   Conway,      126     Mass. 

Tyler  V.  Todd,  36  Conn.  220 ;  Dougan  V.  374;    Sewell  v.    Coehocs,    11   Hun     (N. 

Champlain  Transp.    Co.,  56    N.    Y.    1;  Y.)    626;    Couch   v.   Watson   Coal   Co., 

Wooley  V.  Grand  St.,  etc.,  R.  Co.,  83  46  Iowa    17;  Campbell  v.  Chicago,  etc., 

N.  Y.  121;  Sewell  v.  Cohoes,  75  N.  Y.  R.  Co.,  45  Iowa  76. 

45,  31  Am.  Rep.  418;   Hudson  v.  Chi-  ^^  Branch  v.  Libbey,  78  Me.     321,     5 

cago,  etc.  R.  Co.,  59  Iowa    581,  44  Am.  Atl.   71,  57  Am.  Rep.   310;   Hudson  v. 

Rep.   692;    Cronur  v.     Burlington,     45  Chicago,  etc.  R.  Co.,  59  Iowa    581,  44 

Iowa    627,   13   N.   W.   735;   Morrell   v.  Am.  Rep.  692;  Hubbard  v.  Concord,  35 

Pack,  24  Hun  (N.Y.)  37;  Terre  Haute,  N.  H.  52,  69  Am.  Dec.  520. 


^    197]  LIABILITY    rOK   INJURIES.  189 

at  the  same  place  and  in  the  same  manner  ;^^  yet  this  has  been  other- 
wise held  by  some  of  the  courts.^^  In  detennining  revelancy  or  ad- 
missibility of  evidence,  the  court  should  always  forbid  the  admission 
of  testimony  to  a  collateral  fact  which  furnishes  no  legal  presump- 
tion as  to  the  principle  fact  in  dispute. °^  To  state  the  numberless 
decisions  on  the  relevancy  or  admissibility  of  certain  evidence  in  neg- 
ligence cases,  would  be  an  almost  impossible  task,  but  the  general 
rule  governing  the  admission  of  evidence  in  civil  cases  applies  as  well 
to  the  subject  under  consideration  an  elsewhere."  Therefore,  it  will 
hardly  be  advisable  to  enter  into  a  discussion  of  any  length  on  this 
subject,  but  refer  the  reader  to  treatises  on  this  particular  subject. 

§  197.     Contributory  negligence. 

If  the  plaintiff,  or  party  injured,  by  the  exercise  of  ordinary  care, 
under  the  circumstances,  might  have  avoided  the  consequence  of  the 
company's  negligence,  but  did  not,  the  case  is  one  of  mutual  fault 
and  the  law  will  neither  cast  all  the  consequence  upon  the  company 
nor  will  it  attempt  any  apportionment  thereof. ^^  The  injured  party 
must  not  have  contributed  to  the  negligence  of  the  company,  wherein 
he  was  caused  to  be  injured,  yet  it  must  be  clearly  shown  that  he  was 
guilty  of  contributory  negligence,  otherwise  it  will  not  be  a  good  de- 
fense. For  instance,  the  mere  fact  that  the  plaintiff,  while  walking 
the  street  -in  the  daytime,  failed  to  observe  an  electric  light  wire  sus- 
pended a  few  inches  above  the  ground,  over  which  he  fell,  does  not  of 
itself  constitute  contributory  negligence  ;^^  or  when  it  was  sho^vn  that 
other  persons,  with  wagons  loaded  equally  high,  had  passed  under 
the  same  wire  without  injury,  this  does  not  show  contributory  negli- 
gence.^*^     Where  the  plaintiff  has  violated  a  city  ordinance  and  in 

"Wooley  V.  Grand  St.,  etc.,  R.  Co.,  ^"1     Wharton    on    Ev.    §§40-44;     1 

S3  X.  Y.  121:  Phelps  v.  Winona,  etc.,  Greenleaf  on  Ev.,  §  49,  note,  c.  p.  72,  of 

R.  Co.,  37  Minn.  485,  35  N.  W.  273.  14th  Ed. 

«  Hubbard  v.  Concord,  35  N.  H.  52.  =>»  Cooley  on  Torts,  674. 

00  Am.  Dec.   520 ;    Piollot  v.   Sininurs.  '"  Brush  Electric  Light  Co.  v.  Kelley, 

lOG  Pa.  St.  05.  .51  Am.  Rep.  490;  Aid-  126   Ind.   220,  25  X.  E.   812,   10  L.  R. 

rich  V.  Inhabitants  of  Pelham,   1  Gray  A.   250n.     See,  also.  Woods  v.   Boston, 

(Mass.)   510;  Johnson  v.  Manhattou  R.  121    Mass.    337,   for   an   illustration   of 

Co.,  52  Hun     (N.  Y.)    111.  the  rule. 

'-"  1  Whart.  on  Ev.  5§  29,  40;  Collins  *>  Pennsylvania  Tel.  Co.  v.  Varnau,  15 

V.  Dorchester,  6  Cush.     (Mass.)     397;  Atl.  024. 
Aldrich  v.     Inhabitants     of    Pelham,  1 
Gray   (Mass.)   510. 


190  TELEGRAPH   AXD    TELEPHONE    COMPANIES.  [<§    197 

doing  so  is  injured  by  a  telephone  company,  it  is  not  per  se  con- 
tributory negligence  on  the  part  of  the  injured  party.^^  In  all  cases 
M'here  the  defense  of  contributoiy  negligence  is  set  up  by  the  com- 
pany, it  will  be  a  question  of  fact  to  be  settled  by  a  jury.^^ 

§  198.     Injuries  to  servants — under  common  law. 

The  question  as  to  whether  or  not  employees  can  recover  damages 
from  telegraph  and  telephone  companies  for  injuries  sustained  while 
discharging  their  duties  thereunder,  is  settled  by  the  rule  applicable 
to  master  and  sei-vant.®^  Where  this  rule  has  not  been  changed  by 
the  constitution,  it  is  well  settled  that  a  servant  assumes  the  obvious 
risks  of  the  service  into  which  he  enters,  even  if  the  business  be  ever 
so  dangerous,  and  if  it  might  easily  be  conducted  more  safely  by  the 
employer.  This  is  implied  in  his  voluntary  undertaking,  and  it 
comes  within  a  principle  which  has  a  much  broader  and  more  general 
application,  and  which  is  expressed  in  the  maxim,  Volenti  non  fit  in- 
juria. The  reason  on  which  it  is  founded  is,  that  whatever  may  be 
the  master's  general  duty  to  conduct  his  business  safely  in  reference 
to  persons  who  may  be  affected  by  it,  he  owes  no  legal  duty  in  that 
respect  to  one  who  contracts  to  work  in  the  business  as  it  is.^"*  Thus, 
where  an  experienced  lineman  brought  suit  to  recover  damages  for 
an  injury  sustained  by  the  giving  away  of  an  unsound  pole,  it  was 
held  that  telephone  companies  have  a  right  to  decide  how  their  work 

«^Havey  v.  Mich.  Tel.  Co.,  124  Mich.  6G  N.  J.  L.  41,  48  Atl.  903;  Postal  Tel. 

607,  83  N.  W.  600.  Cable  Co.  v.  Coote,  57  S.  W.  912;  Gen- 

•^Kyes  V.  Valley  Tel.  Co.,  93  X.  W.  eial  Electric  Co.  v.  Murray,  74  S.  W. 

623.  50. 

«*West.  U.  Tel.  Co.  v.     Tracey,    (52  "Fitzgerald    v.     Connecticut     Paper 

C.   C.   A.    168),   114   Fed.   282;    Bergin  Co.,    155   Mass.   155,  29   N.   E.   464,  31 

V.  Southern  New     Eng.     Tel.     Co.,  70  Am.  St.  Rep.  537 ;  Rolseth  v.  Smith,  38 

Conn.    54,   38   Atl.   888;      McCarty     v.  Minn.  14,  35  N.  W.  5C5,  8  Am.  St.  Rep 

Southern  New  Eng.  Tel.  Co.,  69  Conn.  037.     Compare  Taylor,  etc.,  R.  Co.  v 

635,  38  Atl.  359,  61  Am.  St.  Rep.  62;  Taylor,  79  Tex.   104,  23  Am.   St.  Rep 

Jenney  Electric  Light,  etc.,  Co.  v.  Mur-  316;  Scanton  v.  Boston,  etc.,     R.     Co. 

phy,  115  Ind.  566,  18  N.  E.  30;  Clair-  147  Mass.  484,  18  N.  E.  209,  9  Am.  St 

ain  V.  West.  U.  Tel.  Co.,  40  La.  Ann.  Rep.  733.     A  servant  takes  the  risk  of 

178,    3    So.    625;    Maryland    Tel.,    etc.,  known    dangers,  not    of    others;    My- 

Co.  V.   Cloman,   55  Atl.   681;    Flood  v.  ers  v.  Hudson  Iron  Co.,  150  Mass.  125. 

West.  U.  Tel.  Co.,  15  N.  Y.  Supp.  400;  ]5  Am.  St.  Rep.  176,  22  N.  E.  631. 
Chalmers  v.   Patterson,  etc.,  Tel.     Co., 


§    199]  LIABILITY   FOR  INJURIES.  191 

should  be  performed,  and  may  employ  men  to  work  in  an  unsafe 
place,  or  with  dangerous  implements,  without  incurring  liability  for 
injuries  sustained  by  workmen  who  know,  or  should  have  known,  of 
the  hazards  of  the  service  they  have  chosen  to  enter.''^  And,  where  it 
is  a  rule  that  a  lineman  should  look  out  for  his  ovni  safety  in  clinilj- 
ing  poles,  and  should  inspect  and  test  poles  for  himself  and  judge  of 
their  safety,  suitable  appliances  being  at  hand  for  such  testing,  an  ex- 
perienced lineman  must  be  presumed  to  have  known  of  this  custom ; 
and  if  he  climbs  a  pole  when  ordered,  without  such  test, 
and  is  injured  through  its  rotten  condition,  the  accident  must  be  re- 
garded as  due  to  his  own  fault  or  negligence."*'  When  an  employee 
was  injured  in  consequence  of  his  using  a  defective  ladder,  and  it 
appeared  that  he  had  continued  using  the  ladder  after  knowing  of 
the  defect,  a  recovery  was  denied,"" 

§  199.     Same  continued — changed  by  statute. 

The  statutes  and  constitutions  of  some  states  have  changed  the 
foregoing  rule,  so  that  the  employees  of  telegraph  and  telephone  com- 
panies have  the  same  rights  and  remedies  for  injuries  suffered  by  the 
former  from  the  acts  or  omissions  of  such  companies  or  their  em- 
ployees, as  are  allowed  by  law  to  other  persons  not  employees;  and 
knowledge  of  the  defective  or  unsafe  character  or  condition  of  any 
machinery,  way  or  appliances,  shall  not  be  a  defense  to  any  action 
for  injury  caused  thereby,"^  But  where  the  constitution  provides 
that  the  employees  of  a  certain  class  of  corporations  shall  have  these 
rights  and  remedies,  statutes  thereunder  cannot  enlarge  "^  the  mean- 
ing of  this  constitutional  clause  so  as  to  embrace  employees  of  other 
corporations  not  expressly  mentioned  therein."''  It  seems  to  us  that 
the  lawmakers  of  our  country  should  provide  some  means  whereby 

»'  McCarty  v.  Soutliern,  etc.,  Tel.  Co.,  St.    Kep.    244 ;    Jenney   Electric   Light. 

69  Conn.  G35.  38  Atl.  359,  61  Am.  St.  etc.,  Co.  v.  Murphy,  115  Ind.  560,  18  X. 

Rep.  62;  Mclsaac  v.  Northampton,  etc..  E.  30. 

Co.,  172  Mass.  89,  70  Am.  St.  Rep,  244,  »•  Jcnncy  Electric  Light,  etc..  Co.    v. 

51  N.  E.  524.  -Murphy,  115  Ind.  566,  IS  X.  E.  30. 

•""McGarty  v.  Southern,  etc.,  Tel.  Co.,  <» Const.   (Miss.)    193. 

69  Conn.  635,  38  Atl.  359,  61  Am.  St.  «»Laws   (Miss.)   98,  p.  85.  C.  66. 

Rep.  62;  Mclsaac  V.Northampton,  etc..  '"Ballard  v.  Mississippi  Cotton     Oil 

Co.,  172  Mass.  89,  51  N.  E.  524,  70  Am.  Co.,  34  So.  533. 


192  TELEGRAPH   AXD   TELEPHONE    COMPANIES.  [§    199 

the  honest,  faithful  aud  hardworking  laborer  would  be  protected  for 
injuries  Vistained  while  in  the  discharge  of  his  duties.  He  is  gen- 
erally of  a  class  of  people  to  whom  work  becomes  a  matter  of  necessity 
and  without  which  the  w^ants,  cares  and  comforts  of  a  home  would  be 
fearful  to  behold  and  touching  to  the  inner  feeling  of  the  observer. 
On  the  other  hand,  these  companies  must  have  their  business  carried 
on,  regardless  of  the  risks  and  dangers  necessarily  to  be  undergone, 
and  this  must  be  done  by  their  employees.  If  then,  he  is  to  make  a 
test  and  examination  of  the  strength,  soundness  and  safeness  of  the 
poles,  wires,  cross-arms  and  other  material  and  appliances,  before 
he  would  be  exonerated  for  any  negligence  on  his  part,  and  demanded 
that  the  requisite  time  be  allowed  him  for  that  purpose,  he  would 
never  have  been  employed.'^  ^  Therefore,  as  said  before,  it  seems  to 
us  that  there  should  be  some  remedy  at  the  common  law,  whereby  em- 
ployees of  these  companies  should  be  protected  for  injuries  sustained 
while  performing  their  duties  at  such  hazard  as  they  are  almost  forc- 
ed to  undergo. 

§  200.     Must  furnish  suitable  appliances  and  employees. 

^Notwithstanding  the  fact,  that,  by  the  common-law  rule,  the  em- 
ployees of  telegraph  and  telephone  companies  assume  all  risks  and 
dangers  to  which  they  may  be  subjected  while  in  the  discharge  of 
their  duties,  yet  these  companies  must  furnish  them  with  such  ap- 
pliances for  their  work  as  are  suitable  and  such  as  may  be  used  with 
safety.'''^  This,  by  implication  of  law,  is  a  stipulation  in  every  con- 
tract for  service ;  and  if  the  employee  is  injured  by  reason  of  defec- 
tive appliances  placed  in  his  hands  by  the  company,  it  is  liable  un- 
less it  can  show  that  it  has  used  due  care  in  the  selection  or  manu- 
facture of  the  same.'''^     Thus,  where  plaintiff's  intestate,  while  em- 

"Clairain  v.  West.  U.  Tel.  Co.,     40  Atl.     462,     41     L.     R.     A.      200,       66 

La.  Ann.  178,  3  So.  625.  Am.   St.  Rep.   133;    Numedy  v.  Chase, 

^^Clairain  v.  West  U.  Tel.  Co.,  40  La.  119  Cal.  637,  53  Pae.  33,  63  Am.  St. 
Ann.  178,  3  So.  625;  Portance  v.  Le-  Rep.  153;  Chicago,  etc.,  R.  Co.  v.  Ma- 
high  Valley  Coal  Co.,  101  Wis.  574.  77  roney,  170  111.  520,  48  N.  E.  953,  62 
N.  W.  875,  70  Am.  St.  Rep.  932 ;  Ell  v.  Am.  St.  Rep.  396 ;  McMahon  v.  Ida 
Northern  Pac.  R.  Co.,  I  North  Dak.  Min.  Co.,  95  Wis.  308,  60  Am.  St.  Rep. 
336,  48  N.  W.  222,  26  Am.  St.  Rep.  117,  70  N.  W.  478. 
621,  12  L.  R.  A.  97n;  Chameon  "Warner  v.  R.  Co.,  39  N.  Y.  468; 
V.     Sanford     Co.,  70  Conn.     573,       40 


*§>    201]  LIABILITY   lOR  IXJUfilES.  193 

ployed  in  putting  up  telegraph  wires  for  defendant  company,  fell 
from  a  telegraph  pole  and  was  killed,  through  failure  of  defendant 
to. furnish  the  means  and  appliances  required  for  the  safe  and  effi- 
cient performance  of  such  work,  defendant  was  held  liable  in  dam- 
ages ;'^^  and  where  an  employee  was  injured  by  a  sudden  turning  on 
of  the  current,  or  by  a  ''live"  wire  sagging  upon  a  ''dead"  one,  the 
company  was  held  liable  J  ^  The  company  cannot  be  relieved  from  re- 
sponsibility by  the  fact  of  its  having  had  no  knowledge  of  the  defect 
in  the  machinery  or  appliances,  unless  it  can  clearly  show  that  reason- 
able care  was  exercised  in  the  selection  or  manufacture  of  the  same.''' 
It  is  the  duty  of  these  companies  to  furnish  the  most  efficient  ap- 
pliances to,  and  exercise  the  same  degree  of  care  with  the  employees 
to  prevent  them  from  being  injured,  where  the  common  law  rule  has 
been  changed  by  statutes — whereby  they  have  the  same  right  and  rem- 
edies for  such  injuries  as  other  persons.  The  rule  also  applies  to  fur- 
nishing a  sufficient  number  of  skilled  employees  who  can  do  their 
M'ork  carefully  and  properly.'^'^ 

§  201.     Injury  to  these  companies. 

While  telegraph  and  telephone  companies  must  use  due  care  in  the 
operation  of  their  linos  to  protect  the  public  from  injury,  the  public, 
•on  the  other  hand,  must  not  commit  acts  which  would  interfere  with, 
in  any  manner,  the  former's  business.  In  many  states  there  have 
been  statutes  passed  Avhich  subject  any  person  to  indictment  who  in- 

Chicago  R.   Co.  v.   S^veet,  49   111.   202;  Light    Co.,   73      ^lich.   2GS,   41    X.   ^^■. 

Northcates  v.  Bochelder,  111  Mass.  322;  269. 

lamp  Point  Mfg.  Co.  v.  Ballow,  71  111.  '«Haydon  v.   Sniithfield  ^Mfg.   Co.,   20 

418;  Naves  v.  Smith,  28  Vt.  39.  Conn.  548;  Naves  v.  Smith,  28  Vt.  59; 

■*Claiiain  v.   West.  U.  Tel.  Co.,     40  Kyan  v.  Fowler,  24  N.  Y.  410;   Cayzer 

La.  Ann.  178,  3  So.  625.  v.  Taylor,  10  Gray   (Mass.)   274;   Sea- 

"  Colorado  Electric  Co.  v.     Lubbers,  ver  v.  Boston,  etc.,  R.     Co.,     14     Gray 

11  Colo.  505,  7  Am.  St.  Rep.  255;  War-  (Mass.)     466;     Wonder   v.    Baltimore, 

mell  V.  Maine,  etc.,  R.  Co.,  79  Me.  397,  etc.,  R.  Co.,  32  Mo.  411;  Buzzell  v.  La- 

10  Atl.  49,   1  Am.  St.  Rep.  321.     See  conia   Mfg.  Co.,  48  Me    113;    Flike  v. 

note     to     Smith     v.     Peninsular     Car  Boston,  etc.,  R.  Co.,  53  N.  Y.  549 ;  Mad 

Works,  1  Am.  St.  Rep.  548;   Pcidmont  River,   etc.,   R.   Co.   v.   Barber,   5   Ohio 

Electric  Illuminating  Co.  v.  Patterson,  St.  541. 

84  Va.  747,  6  S.  E.  4;  Krautz  v.  Brush  "Moss  v.   Pac.  R.   Co.,  49   Mo.    167: 

Electric  Light  Co.,  82  Mich.  457,  47  N.  Skipp  v.  The  E.  C.  R.  Co.,  9  Exch.  22:1. 
AV.   787;    Weiden     v.     Brush     Electric 
r.  &  T.— 13 


19J:  TELEGKAPH   AXD   TELEPHOA'E    COMPAXIES.  [§    201 

tentionally  or  negligently  in  anywise  obstructs,  injures,  breaks,  or 
destroys,  or  who  in  any  manner  interrupts  the  communications  made 
between  any  two  points  on  the  lines,  or  who  shall  carry  away,  injure 
or  destroy  any  of  the  posts,  wires,  insulators,  or  fixtures,  or  things 
belonging  to  such  companies."^  ^  Independent  of  these  statutes,  any 
])erson  or  corporation  willfully  interfering  with  or  destroying  such 
lines,  may  be  held  liable  for  trespass."^ ^ 

§  202.     Interference  by  other  electrical  appliances — in  general. 

The  operation  of  these  companies  may  be  interfered  with  by  other 
electrical  appliances,  such  as  electric  railway  and  electric  light  com- 
panies, when  they  are  all  on  the  same  streets  and  their  lines  are  run- 
ning parallel.  There  has  been  considerable  litigation  arising  on  the 
subject,  where  one  attempts  to  enjoin  the  other  from  using  the  streets 
in  such  a  manner  as  to  interfere  with  the  working  of  the  machinery 
of  the  light  company.  The  operation  of  these  companies  is  somewhat 
similar  and  in  order  to  fully  understand  the  working  of  each,  so  that 
the  reader  may  see  where  the  business  of  one  may  be  seriously  inter- 
fered with  by  that  of  another,  and  whereby  the  same  may  be  rem- 
edied or  prevented,  it  might  be  well  to  discuss  the  manner  in  which 
these  companies  are  operated.  While  the  business  of  an  electric  light 
company  is  not  one  and  the  same  as  that  of  an  electric  railway  com- 
pany, yet  the  means  of  producing  the  lights — by  an  electric  current 
passing  over  the  line  wire  from  the  motor  and  returning  thereto  by 
another  wire — is  manipuated  in  almost  the  same  manner  as  that  by 
which  electric  cars  are  propelled.  To  have  a  clear  understanding  of 
the  manner  in  w^hich  the  latter  is  operated  will  be  sufficient  to  ex- 
plain how  telephone  and  telegraph  companies  may  be  interfered  with, 
by  either  or  both  of  these  companies,  and  how  the  same  may  be  pro- 
tected. 

^«  Davis  v.  Pacific  Tel.,  etc.,  Co.,  127  '»  Sub-Marine  Tel.  Co.  v.  Dickson,  15 

Cal.  312,  59  Pac.  698,  construing  Pen.  C.  B.  N.  S.  7.5i),  109  E.  C.  L.  759;  The 

Code  Cal.§591;  CodeMiss.  1892,  §1300;  Clara  Killane,  I..  1!.  3  A.  &  E.  161,  19 

Shannon's     Anno.     Code     Tenn.     1896,  VV.  R.  25,  39  L.  J.  Adii.     50;     Earns- 

§1839;    Southwestern  Tel.,  etc.,  Co.  v.  v.orth  v.  West.  U.  Tel.     Co.,  6     X.     Y. 

Priest,   72   S.  W.   241,  construing  Pen.  Supp.    735;    American    U.    Tel.    Co.    v. 

Code  Tex.  art.  784;   West.  U.  Tel.  Co.  Harrison,  31  X.  J.  Eq.  627. 
v.  Bullard,  65  Vt.  634,  construing  Stat! 
V^t.  1894,  §  4249. 


§    204]  LIABILITY   FOR   IXJUKIKS.  1 'J5 

§  203.     Sam"  continued — how  operated — interference. 

Telephoni.'  and  telegraph  companies  have  wires  running  out  from 
some  central  office  or  offices,  to  their  subscribers  and  other  sub-offices, 
where  the  same  are  connected  to  a  receiver.  There  is  another  wire 
at  the  receiver  which  connects  this  with  the  ground  wire  or  the  earth, 
W'hichever  it  may  be.  This  gTounJ  wire,  when  one  is  used,  is  con- 
nected with  the  central  office,  thereby  making  a  complete  circuit. 
These  ground  wires  are  not  used  extensively  except  in  cities,  but  the 
earth  is  used  instead.  In  either  instance,  there  is  a  complete  circuit 
made  and  the  messages  are  transmitted  over  these  wires,  partly,  by 
means  of  electricity.  There  are,  so  far,  two  methods  by  which  elec- 
tric raihvay  cars  are  operated,  with  respect  to  this  circuit:  First,  the 
electricity,  which  is  produced  at  the  poAverhouse,  is  conducted  around 
the  line  on  wires  supported  by  some  means  immediately  over  the 
center  of  the  track.  It  is  then  conducted  from  the  wire  to  the  motor 
on  the  car  by  means  of  a  bar  or  trolley  connecting  the  latter  with  the 
wire.  It  then  escapes  through  the  wheels  to  the  track,  and  thence  over 
the  track  back  to  the  powerhouse,  thereby  making  an  entire  circuit. 
This  method  is  called  the  single-trolley  system.  The  other  way  is  the 
same  as  this,  with  this  exception,  viz:  instead  of  the  track  and  the 
ground  being  used  for  the  return  circuit,  there  is  another  wire  placed 
underneath  the  surface,  for  the  purpose  of  connecting  the  circuit. 
This  is  the  double-trolley  system.  The  first  of  these  is  considered  by 
experienced  electricians  to  be  the  most  simple,  convenient  and  cheaper 
of  the  two ;  and  for  these  reasons  it  is  the  system  most  generally  used. 
It  wnll  be  seen  that  there  is  a  complete  circuit  made  by  all  of  these 
companies,  having  the  central  office  or  the  pow'erhouse  as  the  begin- 
ning of  the  circuit,  and  at  which  i)oint  the  current  of  electricity  is 
transmitted  to  the  circuit:  and,  it  is  the  current  of  the  circuit  of 
each  of  these  companies  which  may  l)e  interfered  with. 

§  204.     Same  continued — causes  of  disturbances. 

The  telephone,  in  order  to  be  successfully  operated,  require?  a  del- 
icate, sensitive  electric  current  with  accurate  pulsations,  and  Avlien- 
ever  this  current  is  strengthened,  or  its  pulsations  interfered  with  by 
the  addition  of  electric  force  from  extrinsic  sources,  its  usefulness  is 


196  TELEGKAPH  AND   TELEPHONE    COMPANIES.  [<^    204 

impaired  or  destroyed.  The  interfering  currents  cause  a  buzzing 
sound,  which  almost  dro^ras  the  voice  and  makes  the  annunciators 
ring,  thus  materially  interfering  with  the  successful  working  of  the 
apparatus  at  the  central  office.  Ihese  companies,  most  generally, 
when  there  are  not  many  interferences  caused  by  other  companies, 
use  the  gi-ound  as  a  return  circuit.^"  At  the  end  of  the  line  or  at  the 
receiver,  the  wires  are  placed  in  the  gi-ound  or  they  are  attached  to 
water  or  sewerage  pipes,  which  conducts  the  escape  current  to  the 
central  office.  This  current  may  be  interfered  with  on  the  wires  and 
poles  above  the  ground,  by  powerful  currents  conveyed  over  the  wires 
employed  by  electric  light  and  railway  companies  and  is  produced  by 
''inductive"  electricity,  or  it  may  be  interfered  with  on  the  return  cir- 
cuit underneath  the  ground  by  ''conduction"  or  "leakage."  It  shall 
be  our  pleasure  to  discuss,  separately,  the  interferences  which  may 
be  caused  on  either,  and  how  the  same  may  be  remedied. 

§  205.     "Inductive"  electricity — meaning  of — effect. 

"Inductive"  electricity  is  the  attraction  which  the  feed  wires  of 
these  companies  have  for  one  another.  The  feed  wires  of  electric 
light  and  railway  companies  are  always  heavily  charged  with  electri- 
city when  the  said  companies  are  operating  their  plants;  and  when 
there  is  a  telephone  or  telegraph  wire  stretched  near  to  and  parallel 
with  the  wires  of  these  companies,  there  is  a  tendency  of  the  more 
heavily  charged  feed  wire  of  such  companies  to  be  attracted  toward 
the  wire  of  the  telephone  company.  The  induction  may  be  great  or 
small,  and  the  greater  the  amount  necessarily  produces  a  greater  in- 
ductive force.  The  amount  of  induction  depends  upon  variation  in 
current,  the  distance  of  the  wires  from  each  other,  and  the  length  of 
parallelism  of  the  wires.  The  current  upon  the  trolley  wire  and  the 
feed  wire  of  the  railway  is  quite  variable  in  quantity  and  intensity, 
owing  to  the  drain  upon  the  store  of  electricity  by  the  moving  and 
stopping  of  the  car.  !N"or  is  the  electricity,  as  generated,  exactly  un- 
iform in  its  flow  from  the  dynamo.  The  result  is,  whenever  the 
telephone  wire  is  parallel  with  the  trolley  wire  and  feed  wire,  there  is 
induced  into  the  telephone  wire  a  current  whose  variation' corresponds 

"^  Cincinnati,  etc.,  R.  Co.  v.  City,  etc.,       St.  Rep.  559,  12  L.  R.  A.  534,  27  N.  E. 
Tel.   Assn.,   48   Ohio    St.    390,   29   Am.       890. 


§    20G]  LTAniLITY   FOR   IXJURIES.  197 

with  the  variation  of  tho  c4ectrical  current  on  the  electric  railway 
wires,  thereby  producing  such  disturbances  as  render  the  use  of  the 
telephone  plant  impracticable. 

§  206.     Same   continued — actions — causes   thereof. 

The  actions  which  arise  under  these  interferences  or  obstructions 
to  the  business  of  telephone  companies  by  electric  light  and  railway 
companies,  is  by  a  bill  of  injunction,  or  an  action  for  damages.  In 
order  to  successfully  maintain  a  bill  of  injunction,  there  should  be  al- 
leged therein  the  fact  that  the  use  of  the  telephone  line  is  being  in- 
terfered with,  or  the  transmission  of  messages  over  the  same  has 
been  and  is  being  obstnicted,  or  is  .being  disturbed  by  the  intense  and 
varying  electric  current  passing  over  the  feed  wire  of  these  companies 
which  is  running  near  to  and  parallel  with  the  line  wire  of  the  tele- 
phone company.  It  must  be  further  shown,  in  order  for  the  telephone 
company  to  recover  damages  or  to  sustain  a  bill  of  injunction,that  the 
loss  caused  by  the  conflict  of  poles  and  wires  is  because  of  defendant's 
fault  or  want  of  care.  The  loss  of  induction,  unlike  that  caused  by 
conduction,  occurs  upon  and  within  the  streets  and  is  a  direct  and 
immediate  result  of  the  occupation  and  use  of  the  streets,  by  a  tele- 
phone company,  simultaneously  with  these  other  companies,  and 
would  be  obviated  or  remedied  by  the  withdrawal  of  either  company 
from  the  streets.  It  cannot  be  said  that  the  rights  of  one  to  use  and 
occupy  the  streets  are  greater  tlian  ihosc  of  the  orhcr.  nor  rliat  one 
is  subservient  to  the  other,  for  they  are  both  quasi-public  corporations, 
created  by  the  same  person  and  exercising  their  rights  and  privileged 
by  permission  of  the  same  city  authority.  They  both  serve  import- 
ant public  functions,  and  are  equal  candidates  for  public  favor.  Their 
respective  rights  to  occupy  and  use  the  streets  are  co-ordinate.  It 
is  further  clear  that  no  conflict  can  occur  between  these  companies  in 
the  use  of  the  streets,  if  each  shall  remain  in  its  proper  sphere  and 
exercise  its  power  with  that  careful  and  prudent  regard  for  the  rights 
of  others  which  the  law  enjoins.®^  It,  therefore,  follows  that  the 
electric  railway  or  light  companies  must  be  guilty  of  negligence,  or 
a  want  of  care,  before  they  will  become    liable.      If    they,    for    in- 

« CumlxTlaiul  Tel.,  etc..  Co.  v.  I'liiti-d  Electric  Kiuhvay  Co..  42  Fed. 
273. 


198  TELTlGKAPir    AND   TET.EPIIONE    COMPANIES.  [§    200 

stance,  have  their  feed  wire  suspended  in  a  proper  manner  over  a 
track,  or  on  the  opposite  side  of  the  street  to  that  on  which  the  tel- 
ephone wire  is  strung,  the  company  will  not  be  liable.  In  other  words, 
the  telephone  company  must  exercise  due  care  toward  these  companies 
and  if  it  obstructs  the  streets  in  anywise  as  to  prevent  these  companies 
from  carrying  on  their  business  uninterruptedly,  it  cannot  maintain 
this  suit. 

§  207.     Same  continued — decision  on  point. 

The  court,  in  one  of  the  most  able  decisions  ever  rendered  in  sus- 
taining an  injunction  suit  against  electric  railway  companies  from 
using  its  feed  wire — the  same  having  been  constructed  immediately 
over  its  track — in  such  a  manner  as  to  interfere  with  the  use  of  the 
streets,  by  a  telephone  company,  has  the  following  to  say :  "The  loss 
caused  by  conflict  of  poles  and  wires  is  imputable  to  defendant's  fault 
or  want  of  care.  Having  power  to  have  avoided  this  conflict  with- 
out injury  to  its  plant,  it  was  the  defendant's  duty  to  do  so.  The  con- 
flict was  the  result  of  defendant's  unnecessary  act.  On  the  other 
hand,  the  loss  by  induction  cannot  be  imputed  to  any  fault  or  neg- 
ligence of  defendant.  Its  plant  was,  as  regards  this  matter,  ]iroperly 
constructed  and  operated.  Defendant  could  not  obviate  induction 
without  abandoning  the  streets  where  it  occurred.  Induction  is  such 
obstruction  of  the  streets  as  plaintiff  is  forbidden  to  create.  The 
objection  that  induction  is  not  an  obstruction  of  the  streets  ^sticks  in 
the  bark.'  True,  it  did  not  arrest  the  construction  and  operation  of 
defendant's  plant,  but  that  results  not  for  the  reason  that  induction  is 
not  an  obstruction,  but  because  defendant  was  sufficiently  powerful 
to  disregard  and  override  it.  A  child  upon  defendant's  track,  in 
front  of  its  moving  car,  is  not  in  a  strict  sense  an  obstruction ;  but  who 
will  say  that  the  fact  does  not  seriously  interfere  with  defendant's 
free  and  unembarrassed  use  of  the  street  ?  The  constraint  caused  by 
liability  for  legal  penalties,  if  the  child  is  crushed,  operates  as  a 
very  substantial  obstruction.  Defendant  must  stop  the  car  or  incur 
serious  liability.  It  is  vain  to  say  that  induction  is  not  an  obstruction 
if  defendant  shall  be  held  for  the  unavoidable  damage  caused  by  it. 
It  is  true,  induction  implies  no  physical  contact  of  the  two  plants, 
but  is  a  direct  and  immediate  result  of  plaintiff's  use  and  occupation 


§    208]  LIABILITY   FOR   IX.IURIES.  199 

of  the  streets.  Tlic  ]»rcsence  of  plaintiff's  poles  and  wires  upon  the 
street  causes  induction  and  their  removal  would  obviate  it.  The  plain- 
tiff cannot  recover  for  the  loss  sustained  from  induction.  It  results 
from  its  unlawful  obstruction  of  defendant's  use  of  the  streets. "**- 

§  208.     Same  continued — decision  on   "conduction." 

The  same  court  draws  a  distinction  between  the  liability  of  these 
electric  railway  companies  for  the  interference  of  the  use  of  the 
streets  by  telephone  companies  by  ^'induction"  and  "conduction," 
and  shows  how  they  may  be  liable  for  "conduction."  The  court  says : 
"Is  defendant  liable  for  loss  sustained  by  plaintiff  from  the  effect  of 
conduction  ?  The  loss  by  conduction,  unlike  that  caused  by  induction 
does  not  result  from  plaintiff's  obstruction  of  defendant's  use  of  the 
streets  for  an  ordinary  purpose.  This  interference  would  occur  and 
cause  precisely  the  same  loss  to  plaintiff,  and  in  precisely  the  same 
manner.  If  plaintiff  had  no  poles  or  wires  upon  the  street,  loss  by 
conduction  does  not  result  in  the  slightest  degree  from  the  presence 
of  the  plaintiff's  poles  and  wires  upon  the  streets,  and  would  not  be 
to  any  extent  remedied  by  their  removal.  The  contact  between  the 
two  plants,  caused  by  conduction  and  the  consequent  injury,  does  not 
occur  upon  or  within  the  streets  or  through  the  medium  of  plaintiff's 
poles  and  wires  located  upon  the  streets,  but  upon  plaintiff's  private 
property  and  that  of  its  subscribers,  lying  outside  of  the  streets  and 
within  half  a  mile  on  either  side.  The  fact  of  plaintiff's  occupation 
and  use  of  the  streets,  a  controlling  factor  in  determining  defendant's 
inability,  for  loss  by  induction,  is  irrelevent  in  the  consideration  of 
the  question  of  defendant's  liability  for  loss  by  conduction.  This 
question  must  be  determined  as  if  the  plaintiff  had  no  poles  or  wires 
upon  the  streets.  The  proviso  in  the  statute  of  1885,  forbidding 
plaintiff'  by  the  use  of  the  streets  to  obstruct  their  ordinary  use,  has 
no  application  to  the  question  under  consideration.  That  statute  lim- 
its plaintiff's  use  of  the  streets,  but  it  does  not  abridge  its  right  to 
private  property  outside  the  street  and  wholly  detached  from  their 
use.  That  statute  confers  upon  plaintiff  the  use  of  the  streets  and 
limits  that  use.  It  does  not  confer  upon  plaintiff  any  rights  of  pri- 
vate property  outside  the  streets,  and  does  not  undertake  to  abridge 

•"Id. 


200  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [§    208 

anv  sucli  rights.  The  proviso  pertains  wholly  and  exclusively  to  the 
nse  of  the  streets.  The  defendant's  claim  to  the  dominant  use  of  the 
streets,  if  conceded',  has  no  place  in  the  consideration  of  this  question 
involving-  the  rights  of  the  parties  outside  the  streets."^" 

§  209.     Same  continued — priority  of  time — induction. 

The  right  of  relief  by  injunction  depends  in  a  measure  upon  the 
fact  as  to  whether  the  telephone  company  has  a  prior  right  of  occu- 
pancy to  the  space  covered  by  its  wires  as  against  the  railway  and 
electric  companies.  In  a  case  where  a  telephone  company  sued  for 
an  injunction  to  restrain  the  electric  light  company  from  occupying 
certain  streets,  and  from  placing  its  wires  too  close  to  its  own,  there 
was  some  contest  as  to  which  had  the  prior  right  of  occupancy.  The 
bill  alleged  that  incandescent  light  wires  could  not  Idc  operated  par- 
allel to  telephone  wires  at  a  less  distance  than  three  feet,  nor  arc 
light  wires  at  a  less  distance  than  two  feet,  without  seriously 
interfering  with  the  telephone,  and  that  if  the  arc  light  wires 
crossed  the  telephone  wires  at  a  less  distance  than  ten  feet 
without  being  securely  boxed,  there  was  danger  of  accident. 
The  trial  court  enjoined  the  light  company  from  using,  for 
arc  light  purposes,  any  wires  running  parallel  and  on  the 
same  side  of  the  street  with  the  telephone  wires,  and  from 
using  for  incandescent  light  purposes  any  wires  running  parallel  with 
the  telephone  wire  on  the  same  side  of  the  street  within  a  less  distance 
than  eight  feet,  and  in  any  case  for  a  distance  greater  than  three  hun- 
dred feet.  It  was  further  provided  in  the  decree  that,  in  all  cases, 
wires  must  cross  each  other  at  an  angle  of  not  less  than  forty-five  de- 
grees, and  a  strong  guard  wire  should  be  suspended  between  the  wires 
of  the  two  companies  to  prevent  the  upper  wires  from  falling  on  the 
lower.  The  injunction  was  confined,  however,  to  those  streets  in 
which  the  telephone  company  had  a  prior  right  of  occupancy,  and  was 
refused  as  to  streets  in  which  the  electric  light  company  had  been  the 
first  occupant.  The  court  also  enjoined  the  telephone  company  from 
placing  its  wires  too  near  those  of  the  light  company.  The  decision 
of  the  trial  court  was  sustained  on  appeal,  except  as  to  the  injunction 
against  the  telephone  company;  that  part  of  the  injunction  was  set 

"Id. 


§    210]  LIABILITY  FOR  INJURIES.  201 

aside  on  the  ground  that  the  answer  had  asked  for  no  aflSrmative  re- 
lief, and  that  it  did  not  appear  that  the  telephone  wires  could  exert 
the  slightest  inflncncc  upon  those  of  the  light  company.®^ 

§  210.     Same  continued — priority  of  time — conduction. 

There  is  a  different  rule  held  by  the  courts  with  respect  to  the  pri- 
ority of  time  in  the  occupancy  of  streets  where  a  telephone  company 
attempts  to  enjoin  other  companies  for  injuries  caused  by  "con- 
duction" or  "leakage."  In  a  case  on  this  point  it  appeared  from 
the  evidence  that  the  use  of  the  metallic  circuit  by  either  company 
would  prevent  any  interference  between  the  two  currents.  The  tel- 
phone  company  could  use  such  a  circuit  by  the  adoption  of  a  safe 
and  comparatively  inexpensive  device,  while  the  railway  company 
could  do  so  only  at  a  great  expense  and  annoyance.  The  question 
was  practically  as  to  which  company  should  undergo  the  expense  of 
such  a  circuit.  The  denial  of  the  injunction  was  placed  by  Brown,  J.. 
upon  the  following  grounds :  "First,  that  the  defendants  are  making 
lawful  use  of  the  franchise  conferred  upon  them  by  the  state  in  a 
manner  contemplated  by  the  statute,  and  that  such  act  cannot  be  con- 
sidered as  a  nuisance  in  itself.  Second :  That  in  the  exercise  of  such 
franchise,  no  negligence  has  been  shown,  and  no  wanton  or  unneces- 
sary disregard  of  the  rights  of  the  complainant.  Third:  That  the 
damages  occasioned  to  the  complainant  are  not  the  direct  consequence 
of  the  construction  of  defendant's  roads,  but  are  incidental  damages 
resulting  from  their  operation,  and  are  not  recoverable."*'^ 

8*  Nebraska  Tel.     Co.    v.    York    Gas  United  Electric  E.  Co.,  42  Fed.     273: 

Light  Co.,  27  Neb  284,  43  N.  W.  126;  Hoyt  v.  Jcffers,  30  Mich.  181;  Hudson 

West.  U.  Tel.  Co.  v.  Champion  Electric  River  Tel.  Co.  v.  Watervliet  Turnpike. 

Light  Co.,  14  Cin.  Wkly.  Bull.  327.  etc.  Co.,  135  N.  Y.  393,  17  L.  R.  A.  674. 

"Cumberland      Tel.,      etc.,      Co.      v.  31  Am.  St.  Rep.  83S. 


CHAPTER  XI. 

REGULATION  AND  CONTROL. 

§  211.  Federal  control. 

212.  Same  continued — concurrent  state  rights. 

213.  Telegraph  lines  over  subsidized  railroads. 

214.  State  control. 

215.  State  may  control  the  construction. 

216.  Same  continued — taxing  power. 

217.  Same  continued — penalty  for  delay  in  delivering  messages 

218.  Same    continued — the   Pendleton   case — what   embraced. 

219.  Same  continued — must  fall  within  meaning  of  statute. 

220.  Same  continued — offices  established — must  keep  open. 

221.  Same  continued — other  regulations. 

222.  Same   continued — limitation — impairment  of  contract. 

223.  Regulate  charges. 

224.  Same  continued — constitutionality  of  statutes. 

225.  Same  continued — right  to  fix  charges — reason. 

226.  Same   continued — cannot    evade    statutes — charged    in    two 

items — patents. 

227.  Statute  rates  must  be  reasonable. 

228.  As  to  interstate  messages — cannot  fix  maximum  charges. 

229.  Must  furnish  services  notwithstanding  charges. 

230.  Municipal  control. 

231.  Powers  limited — generally  specified. 

232.  Power  to  revoke  franchise. 

233.  Cannot  impose  tax  license — not  police  power. 

234.  Cannot  regulate  rate — without  express  authority. 

§  211.     Federal  control.  • 

Where  telegraph  and  telephone  companies  extend  into  several 
states,  they  become  instruments  of  interstate  commerce,  and  messages 
sent  over  these  lines  are  commerce  between  the  states,^  subject  to  the 
control  of  Congress,  so  far  as  regards  matters  connected  with  com- 
merce among  the  states  or  with  foreign  countries.^  Although  the 
fact  that  a  telephone  company  has  extended  its  lines  through  diffei:- 

^  In  re  Pennsylvania  Tel.  Co.,  48   N.  State  348,  46  Am.  St.  Eep.  578,  24  L. 

J.  Eq.  91,  20  Atl.  846,  27  Am.  St.  Rep.  R.  A.  724,  37  N.  E.  710. 

462;    Central,   etc.   Tel.   Co.   v.   Falley,  ^  Galium  v.  District  of  Columbia,  15 

118  Ind.  194,  19  N.  E.  604,  10  Am.  St.  App.  Cas.    (D.  C.)    529. 
Rep.   114;    Dailey   v.    State,     51      Ohio 

(202) 


<§>    212]  KEOULATIOX   AND   CONTROL.  203 

ent  states,  and  is  engaged  in  interstate  commerce,  will  not  relieve  it 
from  the  operation  of  state  statutes  ui>on  business  conducted  wholly 
within  the  state;  nor  justify  the  refusal  of  such  a  company  to  furnish 
the  best  telephonic  connections  and  facilities  to  })ersons  doing  business 
in  such  state,  on  the  terms  prescribed  by  such  statute ;  ^  nor  will  a 
state  be  prohibited  from  enacting  laws  subjecting  such  companies  to 
penalties  for  acts  of  negligence  occurring  entirely  within  the  limits 
of  that  state,  although  such  acts  may  be  committed  in  the  delaying  of 
the  transmission  of  messages  to  points  in  other  states.**  The  object  of 
vesting  the  power  to  regulate  commerce  in  Congress  was  to  secure, 
with  reference  to  its  subjects,  uniform  regulations,  where  practica- 
ble, against  conflicting  state  legislation.  Such  conflicting  legislation 
would  inevitably  follow  with  reference  to  telephonic  communications 
between  citizens  of  different  states,  if  each  state  was  vested  with  the 
power  to  control  them  beyond  its  own  limits.  The  manner  and  order 
of  the  delivery  of  telegrams,  as  well  as  their  transmission,  would 
vary  according  to  the  judgment  of  each  state.  Thus,  the  Indiana 
statute  requires  telegrams  to  be  delivered  by  messengers  to  persons 
to  whom  they  are  addressed,  if  they  reside  within  one  mile  of  the 
telegraph  station,  or  within  the  city  or  town  in  which  such  station  is ; 
and  the  requirement  applies  according  to  the  decision  of  the  supreme 
court  in  this  case  when  the  delivery  is  to  be  made  in  another  state. 
Other  states  might  consider  that  the  delivery  by  messengers  to  a  per- 
son living  in  a  city  many  miles  in  extent,  was  an  unjust  burden,  and 
require  the  duty  within  less  limits;  so,  if  the  law  of  one  state  could 
prescribe  the  order  and  manner  of  delivery  in  another  state,  the  re- 
ceiver of  the  message  would  often  find  himself  incurring  a  penalty 
because  of  conflicting  laws,  both  of  which  he  could  not  obey.  Con- 
flict and  confusion  would  only  follow  the  attempted  exercise  of  such 
a  power. ^ 

§  212.     Same  continued — concurrent  state  rights. 

The  power  to  regulate  commerce  is  manifestly  a  dormant  power 
until  brought  into  activity.    It  covers  a  wide  field  and  embraces  many 

»  Central,  etc.,  Tel.  Co.  v.  Falley.  118  194,  22  S.  E.,  18G.  Til  Am.  St.  Kep.  68, 

Ind.   194,   10  Am.   St.  Rep.   114,   19  N.  30  L.  R.  A.  158. 

E.  604.  'West.  U.  Tel.  Co.  v.  Pendleton,  122 

*West.  U.  Tel.  Co.  v.  Howell,  95  Ga.  V.  S.  347,  7  S.  Ct.  Rep.  1126. 


204  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [<§    212 

subjects,  and  to  the  extent  that  Congress  fails  to  exercise  it  in  any 
given  case,  it  seems  to  be  conceded  that  it  is  a  concurrent  power  and 
may  be  exercised  by  any  state.*^  Until  this  dormant  power  of  the 
constitution  is  awakened  and  made  effective  by  appropriate  legisla- 
tion, the  reserved  power  of  the  state  is  plenary,  and  its  exercise  in 
good  faith  cannot  be  made  the  subject  of  review  by  the  United  States 
Supreme  Court. "^  Thus,the  states  may  require  foreign  telegraph  com- 
panies to  have  a  known  place  of  business  within  their  jurisdiction, 
and  an  agent  or  agents  thereat  on  whom  summons  may  be  served ;  or 
they  may  require  a  prompt  delivery  of  messages  received  from  another 
state  and  impose  a  penalty  for  a  failure  to  do  so  f  or  they  may  pro- 
vide a  limited  time  within  which  suits  must  be  brought  and  a  notice 
of  same  given  prior  thereto.^  Because  the  company  is  a  foreign  cor- 
poration and  carrying  on  interestate  commerce,  will  not  deprive  the 
state  of  any  of  its  police  regulations.  ^° 

§  213.     Telegraph  lines  over  subsidized  railroads. 

In  order  to  have  connection  between  the  East  and  the  West,  Cong- 
ress granted  rights  of  ways  to  the  Pacific  railroads  and  aided  and 
assisted  them  in  the  construction  of  their  roads.  ^^  In  connection 
^vith  their  railroad  business,  Congress  also  granted  to  them  fran- 
chises for  the  construction  and  operation  of  telegraph  lines  along 
their  roads.  Congress,  nevertheless,  has  control  over  these  lines,  and 
the  railroads  cannot  evade  the  federal  control  of  these  lines  by  any 
agreement  with  a  telegraph  company, ^^  as  they  may  be  compelled  to 
so  operate  their  lines  as  to  give  equal  facilities  to  all,  without  any 
discrimination  in  favor  of  any  person  or  corporation ;  and  to  receive 

« Steamship    Co.    v.    Joliffe,    2    Wall.  "  U.  S.  v.  West.  U.  Tel.  Co.,  50  Fed. 

450;  American  U.  Tel.  Co.  v.  West.  U.  28.     See,  also,  U.  S.  v.  Union  Pac.  R. 

Tel.  Co.  42  Am.  Rep.  90.  Co.,   160  U.  S.  1,  16  S.  Ct.  Rep.  190; 

■'Oilman  v.   Philadelphia,     3     Wall.  U.    S.    v.    Northern    Pac.    R.    Co.,    120 

713.  Fed.  546. 

*Gray  v.  Tel.  Co.,  108  Tenn.  39,  64  '^U.  S.  v.  Union  Pac.  R.  Co.,  160  U. 

S.  W.  1063,  91  Am.  St.  Rep.  706,  56  L.  S.  1,  16  S.  Ct.  Rep.  190.     See,  also,  U. 

R.  A.  301n.  S.  V.  Union  Pac.  R.  Co.,  163  U.  S.  710, 

"Burgess  v.  West.  U.  Tel.  Co.,  92  Tex.  16  S.  Ct.  Rep.  1206;  U.  S.  v.  West.  U. 

125,  71  Am.  St.  Rep.  833.  Tel.  Co.,  160  U.  S.  53,  16  S.  Ct.  Rep. 

"West.  U.  Tel.  Co.  v.  Mississippi  R.  210. 
Co.,  21  So.  15. 


<§    214]  EEGULATIO^f   ANL>   CO.NTKUL.  205 

any  exchange  business  with  connecting  lines.  ^^  One  of  the  require- 
ments imposed  upon  these  companies  as  to  the  franchise  to  operate 
a  telegraph  line  along  their  roads,  is  that  they  cannot  alienate  the 
franchise ;  and  it  has  been  held  that  this  right  of  control  extends  to 
any  telegraph  company  exercising  these  franchises  under  an  agree- 
ment with  the  railroad  company. ^^ 

§  214.     State  control. 

Under  its  inherent  power  of  police  regulation  over  persons  and 
property  within  its  limits,  the  state  may  regulate  the  manner  in  which 
telegraph  and  telephone  companies  shall  be  constructed  and  main- 
tained within  its  borders.  The  police  power  is  one  of  the  fundamental 
principles  upon  which  the  government  was  founded,  and  is  absolutely 
essential  to  its  general  welfare.  Upon  this  power  rests  the  peace  and 
tranquillity  of  all  society,  the  enjoyment  of  health,  the  upbuilding 
of  good  morals,  and  the  security  and  protection  of  property. ^^  Ko 
government  can  advance  in  civilization,  in  wealth,  and  in  influence 
without  an  enforcement  of  these  powers.  When  any  corporation  ac- 
quires a  franchise  for  the  purpose  of  carrying  on  a  corporate  busi- 
ness within  a  state,  it  is  accepted  subject  to  the  police  power.  By 
giving  the  franchise,  the  state  did  not  abrogate  its  power  over  the  pub- 
lic highways ;  nor  in  any  way  curtail  its  power  to  be  exercised  for  the 
general  weUiire  of  the  people;  nor  do  the  states  absolve  themselves 
from  their  primary  duties  to  maintain  the  highways  of  the  respec- 
tive states  in  a  safe  and  proper  condition  for  public  travel  and  other 
necessary  purposes. ^°  Neither  can  this  power  be  alienated,  surren- 
dered, nor  abridged  by  the  legislature  by  any  grant,  contract,  or  del- 
egation whatsoever;  because  it  constitutes  the  exercise  of  a  govern- 
mental function  without  which  it  would  become  powerless  to  do  those 
things  which  it  was  especially  designed  to  accomplish.^'  It,  therefore, 
follows  that  under  its  inherent  power  of  police  regulation,  the  state 

"U.  S.  V.  Xortlioin  Pac.  E.  Co..   120  '"American   Rapid   Tel.   Co.   v.   Hess. 

Fed.  546.  125   N.   Y.   G41,   13   L.  R.   A.   454n,  21 

"  U.  S.  V.  West.  U.  Tel.  Co.,  50  Fed.  Am.  St.  Rep.  764 :  Sheldon  v.  West.  U. 

28;  U.  S.  V.  Union  Pac.  R.  Co.,  160  U.  Tel.  Co..  121  N.  Y.  697. 

S.    1,    16    S.    Ct.    Rep.    190;    U.    S.    v.  '•  Peoplo  v.  Squire.  107  N.  Y.  593,  1 

Northern  Pac.  R.  Co.,  120  Fed.  546.'  Am.  St.  Rep.  803;  Presbyterian  Church 

"  Cooler  on  Const.     Limitation.  572.  v.  Xcw  York  City,  5  Cow.  540. 


206  TELEGKAPII   A^"D    TELEl'IIOA'E    COMrA.XlES.  ['§    214 

may  regulate  the  manner  in  which  domestic  telegraph  and  telephone 
companies  shall  be  constructed  and  carried  on  within  its  borders ;  and 
it  may  also  regulate  and  control,  to  a  certain  extent,  foreign  corpor- 
ations doing  business  within  the  state.  While  the  telegraph  and  tel- 
ephone companies  ma}-,  and  generally  do,  fall  under  the  laws  pertain- 
ing to  interstate  commerce,  and  therefore  regulated  by  Congress,  yet 
the  states  may  prescribe  certain  conditions  for  them  to  perform  before 
they  will  be  protected  and  recognized  under  the  state  laws.  For  in- 
stance, a  foreign  telegraph  company,  which  has  failed  to  locate  an 
office  and  place  an  agent  thereat,  on  whom  a  summons  may  be  served, 
in  a  state  whose  constitution  provides  that  such  must  be  done,  will  not 
be  protected  in  an  injunction  suit  instituted  by  such  a  company.^'' 
They  cannot  be  prevented  from  coming  into  a  state — and  they  may, 
upon  the  principles  of  comity,  do  business  therein,  unless  it  is  in 
conflict  with  the  laws  thereof  or  unjustly  interferes  with  the  rights 
of  some  of  its  citizens — yet  they  will  not  be  protected  by  the  state 
laws.^^ 

§  215.     State  may  control  the  construction. 

The  state  in  granting  to  a  telephone  company  a  license  to  construct 
its  line  upon  the  streets  or  public  highways  does  not  relinquish  its 
control  over  the  streets  and  highways ;  nor  does  it  divest  itself  of  the 
right  to  exercise  the  police  power  in  any  way.  But  even  if  the  state 
had  granted  some  interest  in  the  streets,  it  could  nevertheless  regu- 
late the  size  and  location  of  the  poles,  the  height  of  the  wires,  and 
their  location  ;  and  should  they  become  an  obstruction  and  a  nuisance, 
the  state  could  remove  them  or  require  them  to  be  placed  under- 
ground.^*^  The  company  may  be  required  to  furnish  a  map  showing 
the  street  or  highway  desired  to  be  used  and  designate  thereon  the 
general  course  of  the  underground  conduit  to  be  used,  with  a  descrip- 
tion of  its  size  and  depth.^i     The  primary  and  fundamental  object 

« American   U.   Tel.   Co.   v.   West.  U.  Chieaoo,  ](;  Fed.  309;  West.  U.  Tel.  Co. 

Tel.  Co.,  67  Ala.  26.  42  Am.  Rep.  90.  v.  N.  Y.,  38  Fed.  552;  Connell  v.  West. 

i»Id.  U.  Tel.  Co.,  108  Mo.  459. 

=«  American  Rapid  Tel.  Co.  v.     Hess,  =' People  v.  Squire.   107  X.  Y.  593.  1 

125  N.  Y.   641,   13  L.  R.  A.   454n,     21  Am.  St.  Rep.  893. 
Am.  St.  Rep.  764;  ]Mut.  U.  Tel.  Co.  v. 


§    216]  KEGULATIOX    AND    CU^'TliOL.  207 

of  all  public  liigliways  is  to  furnish  a  passageway  for  travelers  iu  ve- 
hicles, or  on  foot,  through  the  country.--  They  were  originally  de- 
signed for  the  use  of  the  travelers  alone,  but  in  the  course  of  time  and 
in  the  interest  of  the  general  prosperity  and  comfort  of  the  public, 
they  have  been  put,  especially  in  large  cities,  to  numerous  other  uses, 
and  yet  such  uses  have  always  been  held  to  be  subordinate  to  the 
original  design  and  use.-^  It  is,  therefore,  the  duty  of  the  governmen- 
tal power  to  secure  a  safe  highway  for  the  protection  of  life ;  and  any 
control  over  the  construction  and  maintenance  of  these  companies 
which  will  enhance  the  interest  of  good  morals  and  health,  and  protec- 
tion to  life,  can  and  ought  to  be  exercised  under  the  police  power. 
"The  state  may  exercise  any  other  general  control  in  the  construction 
of  these  companies  as  the  public  interest  may  require.  The  subjects 
upon  which  the  state  may  act  are  almost  infinite,  yet  in  its  regulations 
with  respect  to  all  of  them,  there  is  this  necessary  limitation:  the 
state  cannot  thereby  encroach  upon  the  free  exercise  of  the  power 
vested  in  Congress  by  the  constitution.  Within  that  limitation  it  may 
undoubtedly  make  all  necessary  provisions  with  respect  to  the  con- 
struction of  poles  and  wires  of  telegTaph  companies  in  its  jurisdiction 
which  the  comfort  and  convenience  of  the  community  may  require."-^ 

§  216.     Same  continued — taxing  power. 

The  state,  under  the  police  power,  may  tax  a  foreign  telegraph 
company  doing  business  within  its  borders.  This  brings  us  to  a  sub- 
ject of  much  interest  and  one  to  be  further  discussed — that  is, whether 
such  companies  fall  within  the  laws  of  interstate  commerce,  and 
thereby  to  be  controlled  by  Congress;  or  whether  the  state  can  have 
such  control.  Congress  is  vested,  to  a  limited  extent,  for  special  pur- 
poses, with  the  exercise  of  the  police  power.  One  of  these  special 
purpose?,  in  whicli  it  may  exorcise  this  right,  is  the  power  of  regii- 

^Bouvier's  Institute,  §442.  =*West.  U.  Tel.  Co.  v.  Pendleton.  122 

=n'eople  V.  Squire,  145  U.  S.  175,  12  U.  S.  .347.  7  S.  Ct.  Rep.  112G.  See.  aUo. 

S.  Ct.  Rep.  880,  Aff'g.  107  N.  Y.  593,  1  Coolcy   v.    Un-.u;]    oi    Port   Wardens.    12 

Am.  St.  Rep.  893;  Allentown  v.  West.  How.    (U.   S.)    2!)l) :    West.   U.  Tel.   Co. 

I'.  Tel.  Co.,  148  Pa.  St.  117,     23     Atl.  v.   Massachusetts,   125  U.   S.   530,  S   S. 

1070;  West.  U.  Tel.  Co.  v.  Philadelphia.  ((.  Rep.  9(51;  American  V.  Tel.  Co.  v. 

12  Atl.  144:  Forsvthe  v.  Baltimore,  etc.  West.  U.  Tel.  Co..  <i7   Ala.  31.  42  Am. 

Tel.  Co..  12  Mn.  A).]..  V.U.  V.vy.  00. 


20S  TELEGRAPH  AXD   TELEPHOXE    COMPANIES.  [^    21G 

lating  and  controlling  interstate  commerce,  and  this  power  is  within 
the  exclusive  control  of  Congress.     The  state  has  the  like  exclusive 
power,  subject  to  no  limitation  save  that  of  the  constitution  of  the 
United     States,     to     control     all     of     the     commerce     carried     on 
within  its  borders.      Intelligence  transmitted  by  means  of  electri- 
city is  commerce,  and  when  it  is  being  transmitted  from  one  state 
to  foreign  states,  to  any  of  the  territories,  or  within  the  District  of 
Columbia,  it  is  exclusively  under  the  control  of  Congress.     All  tele- 
phone lines  running  from  one  state  to  any  other,  and  all  connecting 
lines,  even  though  they  may  be  wholly  within  the  state,  are  subject 
to  the  control  of  Congress.     But  if  any  business  is  carried  on  over 
these  lines  within  the  boundary  of  any  state,  and  the  same  is  not 
business  of  a  govermental  nature,  it  is  subject  to  the  control  of  the 
state  and  may  be  taxed  as  any  other  propery  therein.^^  "Considered 
purely  as  a  foreign  corporate  body,  deriving  its  powers  from  a  char- 
ter granted  by  the  state  of  New^  York,  the  state  of  Alabama  has  the 
power  to  prescribe  police  regulations  for  its  government  within  its 
boundaries,  and  to  tax  its  property  situated  there  for  purposes  of  rev- 
enue, having  due  regard  that  no  unjust  discrimination  be  made."^® 
The  state  has  the  same  power  to  tax  domestic  telephone  companies  for 
the  purpose  of  obtaining  revenue  as  it  has  to  tax  any  other  property 
in  the  state.     The  police  power  to  raise  revenue  by  taxation  may  be 
vested  in  municipalities.     They  have  the  power  under  an  ordinance 
to  tax  domestic  telephone  companies  doing  business  within  the  city 
limits.^'^ 

§  217.     Same   continued — penalty  for    delay    in    delivering    mes- 
sages. 

The  state  may,  under  its  police  power,  impose  a  penalty  on  a  tel- 
egraph company  for  a  failure  to  deliver  a  message  promptly  when 
properly  tendered.  These  statutes  are  penal  and  must  be  strictly  con- 
strued in  the  same  manner  as  all  other  penal  statutes.      Thus,    the 

«*  Osborne  v.   State,   33   Fla.    162,    14  27   X.   E.    692,   31    Am.    St.   Eep.   382; 

So.   588,  25  L.  R.  A.   120,  39  Am.   St.  State   v.   French,    109   N.    Car.   722,   14 

Rep.    104;    People  v.   Wemple,   27  Am.  S.    E.    382,    20    Am.    St.    Rep.    590. 

St.   Rep.   547;    Com.   v.   Smith,   92  Ky.  -"Moore  v.  Eufaula,  11  So.  921. 

38,  36  Am.     St.     Rep.     578 ;     City    of  "  Southern     Bell,    etc.,    Tel.    Co.    v. 

Bloomington  v.  Bovirland,   137  111.  534,  D'Alemberte,  21  So.  370. 


<§    218]  KEOULATION    AND    CONTROL.  209 

penalty  imposed  cannot  ordinarily  be  enforced  where  the  failure  of 
duty  on  the  part  of  the  company  occurs  beyond  tlie  jurisdiction  of 
the  state.-*  The  court,  speaking  on  this  subject,  said :  "The  attempt- 
ed reg^ulation  by  Indiana  of  the  mode  in  which  messages  sent  by  tel- 
egraphic companies  doing  business  within  her  limits  shall  be  deliver- 
ed in  other  states  cannot  be  upheld.  It  is  an  impediment  to  the 
freedom  of  that  form  of  interstate  commerce  which  is  as  much  be- 
yond the  power  of  Indiana  to  interpose  as  the  imposition  of  a  tax  by 
the  state  of  Texas  upon  every  message  transmitted  by  a  telegraph 
company  within  her  limits  to  other  states  was  beyond  her  power. 
Whatever  authority  the  state  may  posses  over  the  transmission  and 
delivery  of  messages  by  telegraph  companies  within  her  limits,  it 
does  not  extend  to  the  delivery  of  messages  in  other  states,"  ^^  While 
this  is  the  general  and  accepted  rule,  some  courts  have  held,  that 
these  penalties  can  be  enforced  when  the  message  is  sent  beyond  the 
state,  on  the  ground  that  the  duty  to  send  attaches  in  the  state  in 
which  it  was  tendered,  that  the  breach  occurs  in  that  state,  and  that 
the  penalty  necessarily  attaches  there ;  ^^  these  cases,  however,  have 
been  reversed  by  the  federal  court.^^  These  penalties  may  be  enforced 
for  a  failure  to  deliver  within  a  reasonable  time  a  message  which  has 
been  sent  from  without  a  state,^^  or  sent  through  other  states  to  points 
within.^*"^ 
§  218.     Same  continued — the  Pendleton  case — what  embraced. 

The  decision  of  the  United  States  Supreme  Court,  in  the  Pendle- 
ton case,  was  confined  to  the  particular  point  at  issue  and  is  not  to  be 
given  too  extensive  an  application.  Thus,  where  there  is  a  refusal 
or  total  failure  to  transmit,  the  sender  may  enforce  the  statutory  pen- 
alty, although  the  point  of  destination  was  in  another  state.  So,  also, 
where  the  wrong  complained  of  is  a  refusal  to  deliver,  or  a  delay  in 
delivery,  the  addressee,  if  the  statute  allows  an  action  by  him,  may 

=« Alexander  v.  West.  U.  Tel.  Co.,  67  "West.  U.  Tel.  Co.  v.  Pendleton,  122 

Miss.  380,  7  So.  280;  West.     U.     Tel.  U.  S.  347,  7  S.  Ct.  Rep.  1126. 

Co.  V.  Pendleton,  122  U.  S.  347,  7   S.  ^  West.  U.  Tel.  Co.  v.  James,  16  S.  E. 

Ct.  Rep.  1126;  Little  Rock,  etc.,  R.  Co.  83;    Burnett  v.   West.  U.  Tel.  Co.,  39 

V.  Davis,  41  Ark.  79.  Mo.  App.  599. 

=»West.  U.  Tel.  Co.  v.  Pendleton,  122  "  Leavell  v.   West.   U.  Tel.   Co.,   116 

U.  S.  347,  7  S.  Ct.  Rep.  1126.  N.  Car.  211,  21  S.  E.  391,  27  L.  R.  A. 

^  West.  U.  Tel.  Co.  v.  Pendleton,  95  843,  47  Am.  St.  Rep.  798. 
Ind.  12,  48  Am.  Rep.  698. 
T.  &  T.— 14 


210  TELEGKAPH   AND    TELEPHONE    COMPANIES.  ["§    218 

enforce  the  penalty  though  the  message  is  sent  from  a  foreign  state. 
All  that  was  decided  in  the  Pendleton  case  was  that  a  state  cannot 
enforce  the  performance  of  a  duty  beyond  its  borders,  and  the  fact 
that  the  message  is  sent  from  one  state  into  another  does  not  deprive 
either  state  of  the  right  to  enforce  the  performance,  within  its  bor- 
ders, of  the  duties  of  the  company  engaging  to  transmit  it.  This  view 
would  follow  from  the  accepted  principles  that  a  state  may  enforce 
the  performance  of  the  obligations  of  a  public  company  though  it  is 
engaged  in  interstate  commerce,  and  that  a  state  law  is  not  invalid 
merely  because  it  incidentally  affects  interstate  commerce.^^ 

§  219.     Same  continued — must  fall  within  meaning  of  statute. 

These  statutes  are  penal  and  subject  to  the  rules  of  construc- 
tion which  obtain  in  respect  to  same,  and  which  require  that  "no  case 
shall  be  held  to  fall  within  it  which  does  not  fall  both  within  the  rea- 
sonable meaning  of  its  terms  and  within  the  spirit  and  scope  of  the 
enactment."  "^  Thus,  where  a  statute  imposed  a  penalty  for  failure 
to  "receive  and  transmit  a  message  promptly,  and  with  impartiality 
and  good  faith,  the  company  could  not  be  held  liable  under  this  sta- 
tute on  the  sole  gTOund,  as  alleged,  to  transmit  and  deliver  it."^^ 
"There  is  no  doubt  but  that  the  company  undertakes  to  deliver,  under 
reasonable  rules  and  regulations,  messages  transmitted  over  its  wires, 
and  it  must  respond  in  damages  to  those  who  are  injured  by  its  neg- 
lect of  duty.  But  the  question  is,  has  the  legislature  imposed  a  pen- 
alty for  the  refusal  to  perform  that  duty  as  it  has  for  the  refusal  to 
perform  the  duty  of  transmitting  a  message  ?  The  terms  of  the  act 
are  confined  to  a  refusal  to  transmit  over  the  wires,"''^^  and  the  act  is 
confined  strictly  to  these  words  and  not  to  any  which  might  be  infer- 
red. The  sendee  of  a  message  is  not,  under  these  statutes,  entitled  to 
recover  the  penalty  therein  named  for  a  failure  by  the  company  to 
deliver  such  message  with  due  diligence,  unless  the  charges  thereon 
were  prepaid  or  tendered  by  the  sender,  or  unless  there  was  a  fail- 

=^West.  U.  Tol.  Co.  V.  Pendleton,  122  ==  Barnett  v.  West.  U.  Tel.     Co.,     30 

U.  S.  347,  7  S.  Ct.  Rep.  1126;  Peck  v.  :\Io.  App.  599. 

Chicago,  etc.,  R.  Co.,     94     U.     S.     164;  »« Brooks  v.  West.  U.  Tel.  Co.,  19  S. 

Louisville,  etc.,    R.     Co.,    v.     Railroad  W.  572. 

Com.,   19  Fed.  679.  ="  Id. 


<^  221]  KEGULATIOX  AND  CONTROL.  211 

lire  to  deliver,  or  delay  in  delivci-ing,  on  or  after  payment  or  tender 
by  the  sendee  or  his  agent.^^ 

§  220.     Same  continued — offices  established — must  keep  open. 

When  u  telegrapli  company  once  establishes  an  office,  it  must  not 
discontinue  the  same  without  the  consent  of  the  state;  and  the  fact 
that  the  income  from  such  office  is  not  sufficient  to  defray  the  expense- 
in  keeping  it  up  will  not  be  grounds  for  the  company  to  close  same. 
A  case  involving  this  point  was  that  of  a  foreign  company,  it  being 
claimed  that  it  had  ne\-cr  asked  or  received  from  the  state  in  which 
it  was  being  prosecuted,  any  grant,  franchise,  privilege  or  immunity', 
but  that  it  secured  its  rights  to  erect  its  lines  along  the  post-roads  in 
the  state  by  virtue  of  authority  derived  from  an  not  of  Congress;  yet 
the  court  held  that  it  was  subject  to  such  reasonable  police  regulations 
as  the  state  saw  proper  to  impose  for  securing  conveniences  to  the 
people;  and  the  fact  that  it  does  receive  its  powers  from  Congress, 
does  not  release  it  from  any  and  all  local  public  regulations.^^ 

§  221.     Same  continued — other  regulations. 

The  state  may  i^rovide  such  other  regulations  for  thc.'ie  companies 
as  the  necessities  of  the  state  may  require.  It  may  provide  the  rates 
to  be  charged  for  all  messages  sent  to  all  points  within  the  state ;  that 
they  shall  not  discriminate  among  its  patrons;  that  they  shall  furnish 
equal  facilities  to  all;  and  that  all  foreign  companies  shall  comply 
with  all  the  requirements  exacted  of  domestic  concerns,  and  also  with 
all  the  conditions  required  of  other  foreign  corporations ;  for  instance, 
they  must  file  their  charter  with  the  secretary  of  state  and  have  an 
agent  within  the  state  upon  whom  process  may  be  served.  The  consti- 
tution of  Alabama  provided  that  no  corporation  should  do  business 
within  the  state  "without  having  at  least  one  known  place  of  business 
and  an  authorized  agent  or  agents  therein."  In  this  state,  one  tele- 
graph company  attempted  to  enjoin  another  from  interfering  with 
the  construction  and  operation  of  its  line.     The  former  company  had 

=«Langly  v.  West.  U.  Tel.  Co.,  88  Ga.  v.   West.  U.  Tel.  Co..   113  X.  Car.  213. 

777,  15  S.  E.  291.  IS  S.  E.  389,  22  L.  R.  A.  570.    See  also 

"•West.   U.  Tel.   Co.   v.   Railroad   Co.  :\Iayo  v.  West.  U.  Tel.  Co.,  112  N.  Car. 

"4   Miss.   80,   21    So.    IG;    Railroad   Co.  343,  16  S.  E.   1006. 


212  TELEGRAPH  AXD  TELEPIIO:s;E   COMPANIES.  [<§    221 

not  complied  with  this  condition  and  the  injniiction  was  therefore  de- 
nied; although  it  was  denied  on  the  ground  that  no  right  to  such  re- 
lief was  shown  to  exist.  The  court  further  held  that  the  constitu- 
tional provision  quoted  did  not  conflict  with  the  federal  constitution, 
saying:  '"The  mandate  of  section  -1,  article  14,  of  the  constitution  of 
Alabama,  which  requires  foreign  corporations  to  have  a  known  place 
of  business  and  an  authorized  agent,  is  just  as  much  a  police  regula- 
tion for  the  protection  of  the  property  interest  of  the  citizens  as  a  law 
forbidding  x^agrancy  among  its  inhabitants.  It  does  not  impede  or  ob- 
struct unreasonably  any  right  conferred  on  foreign  telegraph  cor- 
porate companies  by  the  act  of  Congress  and  is  therefore  free  from 
constitutional  objections."'*'^  The  state  may  also  restrict  the  com- 
pany's owner  to  limit  its  liability,  by  declaring  invalid  stipulations  in 
the  contract  of  sending  in  so  far  as  such  stipulations  operate  to  relieve 
the  company  from  liability  for  negligence.*^ 

§  222.     Same  continued — limitation — impairment  of  contract. 

The  state  is  limited  in  its  control  over  these  companies,  in  that  it 
cannot  exercise  a  power  which  is  exclusively  within  the  rights  of  Con- 
gress; nor  can  it  make  provisions  which  would  impair  the  obligations 
of  a  contract  and  the  same  to  be  in  favor  of  a  vested  right.*-  Thus,  a 
municipal  ordinance  granting  to  a  particular  company  authority  to 
construct  and  maintain  telegraph  lines  along  the  streets  without  limi- 
tation as  to  time,  and  for  a  stipulated  consideration,  when  accepted 
and  acted  on  by  the  company  by  a  compliance  with  all  conditions,  and 
by  the  construction  of  an  expensive  plant,  acquires  the  feature  of  a 
contract,  which  the  city  cannot  afterwards  annul  or  alter  in  its  es- 
sential terms  without  the  company's  consent.**     In  this  case  cited  the 

** American   U.  Tel.   Co.  v.   West  U.  "-Dartmouth    College  v.    Woodworth, 

Tel.  Co.,  67  Ala.  26,  42  Am.  Rep.  90.  4  Wheat.   (U.  S.)  518. 

See  also  Singer  Mfg.  Co.  v.  Hardee,  4  **  New    Orleans    v.     Great    Southern 

N,  Mex.  175,  16  Pac.  605;  Cooper  Mfg.  Tel.  Co.,  40  La.  Ann.  41,  3   So.   533; 

Co.  V.  Ferguson,   113  U.   S.   727,  5   S.  Hudson  Tel.  Co.  v.  Jersey  City,  49  N.J. 

Ct.  Rep.  739;  Philadelphia  Fire  Assoc.  L.  303,  8  Atl.  123;   Northwestern  Tel. 

V.  N.  Y.,   119  U.  S.  110,  7  S.  Ct.  Rep.  Exeh.   Co.   v.    Anderson,     12    N.    Dak. 

108.  585,   98  N.   W.   70G,   102  Am.   St.  Rep. 

*^Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  580,  05  L.  R.  A.  771. 
661,  44  N.   W.   1064,   26  Am.  St.   Rep. 
363. 


<§    223]  REGULATION   AND  CONTltuL.  -13 

city  attempted  to  impose  an  additional  burden  on  the  company  in  the 
shape  of  a  tax.  It  chiimed  the  right  under  a  section  of  the  original 
ordinance  which  provided  that  "all  the  acts  and  doings  of  said  com- 
pany under  this  ordinance  shall  be  subject  to  any  ordinance  that  may 
hereafter  be  passed  by  the  city  council  concerning  the  same."  It  was 
held,  that  the  city  could  not  thus  impair  the  contractual  obligation : 
the  court  considering  that  ''the  city's  construction  of  this  section  is 
strained  and  unreasonable,  and  conforms  neither  to  its  spirit  nor  let- 
ter." ^^ 

§  223.     Regulate  charges. 

Telegraph  and  telephone  companies  are  engaged  in  a  "business  af- 
fected with  a  public  interest"  within  the  meaning  of  the  rule  laid 
down  in  a  leading  case/^  and  the  state  in  the  exercise  of  the  police 
power  may,  therefore,  regulate  the  charges  for  such  companies,  and 
provide  a  maximum  rate  which  these  charges  shall  not  exceed.'*'  One 
of  the  fundamental  principles  of  law  is,  that  when  individuals  invest 
their  money  in  an  enterprise  in  which  the  public  has  an  interest,  the 
enterprise  must  be  regulated  by  the  government  in  such  a  manner  as 
to  prevent  its  general  welfare  from  being  interfered  with.  Telegraph 
and  telephone  companies — whether  they  have  become  incorporated  or 
whether  they  are  being  conducted  by  private  citizens  as  a  private  en- 
terprise ^^  — are  carrying  on  a  business  in  which  the  public  has  an  in- 
terest, and  to  such  an  extent  of  public  interest  they  must  be  con- 
trolled by  the  public.  It  is  an  undisputed  fact,  and  one  which  it  is 
unnecessary  to  discuss,  that  the  states  may  regulate  the  charges  on  all 
common  carriors  whir'h  are  cnrrying  on  a  business  to  all  points  within 

"See  note  44  for  cases.  US  Tiid.  104.  10  X.  E.  604.  10  Am.  St, 

"Munn  V.  Illinois,  94  U.  S.  113,  affg.  Itop.  114;  Railroad  Cora'rs  v.  Wost.  V. 

f.O   111.   80:     Coolcy's    Const.   Lim.     (4  Tel.  Co..  113  N.  Car.  213.  18  S.  E.  389. 

Ed.)    p.    (594)   743;  People     v.     Budd.  22  L.  R.  A.  570;  St.  Louis  v.  Bell  Tel. 

117  N.  Y.  1,  5  L.  R.  A.  550n.  Co.,   90  Mo.   023,   9  Am.   St.  Rep.  370. 

"Chesapeake,  etc.,   Tel.   Co.   v.   :\Ian-  2  L.  R.  A.  278n;  Nebraska  Tel.  Co.  v. 

ning,    180   U.    S.   238;    22   S.   Ct.   Rep;  State,  55  Neb.  027.  70  N.  W.  171,  45  T.. 

88ll  Hockett  v.  State,  105  Ind.  259,59  R.  A.  113:  Mayo  v.  West.  U.  Tel.  Co.. 

Am.  Rep.   207:   Central  U.  Tel.   Co.  v.  112  N.  Car.  343.  10  S.  E.  1000. 

Bradbury.    100    Ind.    1.    5    N.    E.    721;  « Hockett  v.  State.   105  Ind.  250.  55 

Johnson  V.   State.   113   Ind.   143.   15  N.  Am.  Rep.  201. 

E.   215;    Central   U.   Tel.   Co.   v.   State. 


214  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§    223 

tlieir  jurisdiction.-*'^  Under  statutorj  enactments,  telegraph  and  tele- 
phone companies  have  become  common  carriers  of  intelligence  and 
are,  therefore,  to  be  governed  and  controlled  by  the  laws  applicable  to 
other  common  carriers ;  however,  it  is  not  necessary  in  order  to  give 
the  state  control  over  the  charges  of  these  companies,  for  statutes  to  be 
passed,  declaring  them  common  carriers. 

§  224.     Same  continued — constitutionality  of  statutes. 

It  has  been  attempted  to  be  shown  that  these  statutes,  which  regu- 
late the  charges  of  these  and  other  similar  institutions  are  unconstitu- 
tional, in  that  they  attempt  to  divest  persons  of  property  without  due 
process  of  law,  which  is  prohibited  under  the  fourteenth  amendment 
of  the  constitution  of  the  United  States.  The  case  of  Munn  v.  Illi- 
nois ^^  is-  a  direct  authority  upon  this  question.  This  case  was  car- 
ried to  the  United  States  Supreme  Court  on  a  writ  of  error,  to  revie^v 
a  judgment  of  the  supreme  court  of  the  State  of  Illinois,  which  af- 
firmed the  constitutionality  of  a  statute  of  that  state  fixing  a  maxi- 
mum charge  for  the  elevation  and  storage  of  grain  in  warehouses  in 
that  state.  The  act  was  challenged  as  a  violation  of  the  constitutional 
guaranty  in  the  constitution  of  Illinois  protecting  life,  liberty  and 
property,  and  which  was  expressed  in  substantially  the  same  language 
as  that  found  in  the  constitutions  of  almost  all  other  states.  The  su- 
preme court  of  the  United  States  affirmed  the  judgment  of  the  state 
court,  on  the  ground  that  the  legislation  in  question  was  a  lawful  exer- 
cise of  legislative  power,  and  did  not  infringe  upon  this  clause  of  the 
federal  constitution.^^  As  was  said  by  an  eminent  jurist  on  this  sub- 
ject: "There  is  no  doubt  that  the  general  principle  is  favored,  both 
in  law  and  justice  that  every  man  may  fix  what  price  he  pleases  upon 
his  own  property  or  the  use  of  it;  but  if,  for  a  particular  purpose,  the 
public  have  a  right  to  resort  to  his  premises,  and  make  use  of  them, 
and  he  have  a  monopoly  in  them  for  the  purpose,  if  he  will  take  the 
benefit  of  that  monopoly  he  must,  as  an  equivalent,  perform  the  duty 
attached  to  it  on  reasonable  terms."  ^-  "Where  an  employment  be- 
comes a  matter  of  such  public  interest  and  importance  as  to  create  a 

*"  People  V.  Budd,   117  X.  Y.     1,     15  ^^  Munn  v.  Illinois,  94  U.  S.  113. 

Am.  St.  Rep.  4G0,  ,3  L.  R.  A.  SfjOn.  "  Id. 

^^Almitt  V.  Ingles,   12  East  527. 


<§    226]  EEGULATION  AND  CONTROL.  215 

cominoii  charge  or  burden  upon  the  citizen  ;  in  other  \voi'«i.-,  when  it 
becomes  a  practical  monopoly,  to  which  the  citizen  is  compelled  to  re- 
sort, and  by  means  of  which  a  tribute  can  be  exacted  from  the  com- 
munity, it  is  subject  to  regulation  by  the  legislative  power."  ^^ 

§  225.     Same  continued — right  to  fix  charges — reason. 

i'rum  the  earliest  period  of  the  common-law  practice  it  has  been 
held  that  common  carriers  were  under  obligations  to  transfer  prop- 
erty for  a  reasonable  compensation.  They  were  not  at  liberty  to 
charge  whatever  sum  they  pleased;  but  where  the  price  of  carriage 
was  fixed  by  the  contract  or  convention  of  the  parties,  the  contract 
was  not  enforcible  beyond  the  point  of  a  reasonable  compensation.  It 
is  said  that  the  control  which  the  legislature  is  permitted  to  exercise 
over  the  business  of  common  carriers,  is  a  survival  of  that  class  of 
legislation  which,  in  former  times,  extended  to  the  details  of  personal 
conduct  and  assumed  to  regulate  the  private  affairs  and  business  of 
men  in  tlie  minutest  particulars.^^  The  principle  of  the  common  law, 
that  telegraph  and  telephone  companies  must  serve  the  public  for  a 
reasonable  compensation,  becomes  a  part  of  the  law  of  the  states, 
when  they  were '  declared  common  carriers  by  statutes.  As  it  is 
within  the  power  of  the  legislature  to  enforce  upon  these  companies 
the  duty  to  make  only  reasonable  charges,  it  is  but  reasonable  that  it 
may  fix  and  define  the  maximum  charges  for  their  services,  and  pun- 
ish the  wrongdoer  for  exceeding  them.^^  Whenever  there  is  a  general 
right  on  the  part  of  the  public,  and  a  general  duty  cast  upon  any  other 
with  respect  to  such  right,  we  think  it  is  competent  for  the  legislature, 
by  a  specific  enactment,  to  prescribe  a  precise  and  practical  rule  for 
declaring,  establishing,  and  securing  such  right  and  enforcing  re- 
spect for  such.^*^ 

§  226.     Same  continued — cannot  evade  statutes — charged  in  two 
items — patents. 

Where  a  statute  exists  which  regulates  such  charges,  the  telephone 
company  cannot  indirectly  evade  its  operation.     Thus,  it  cannot  ex- 

'"Sinkin.i;  Fund  Case.  09  U.  S.  747.  IMunn  v.   Illinois,  94  U.   S.   113;    Saw- 

"Poople   V.    Budd,    117    N.   Y.    1.    13  yer  v.  Davis.   130  Mass.  22S9,   49  Am. 

Am.  St.  Rep.  400.  5  L.  R.  A.  559n.  Rop.  27. 

"People   V.   Budd,    117    N.   Y.    1.    I'l  ^"Com.  v.  Alger.  7  Cush.  53. 

Am.   St.   Rop.   400.   5   L.   R.   A.   559n. : 


216  TELEGRAPH  AND  TELEPHO]SrE   COIMPAXIES.  [§    226 

ceed  the  maximum  rate  by  pretending  to  divide  the  charges  into  two 
items,  one  being  designated  as  the  regular  rental  and  the  other  as  a 
monthlv  charge  for  the  use  of  the  instruments  by  non-subscribers. 
This  evasion  was  attempted  to  be  made  under  an  Indiana  statute 
which  provided  that  any  person  owaiing  or  operating  a  telephone  line 
who  charges  and  collects  for  the  use  of  a  telephone  only,  a  sum  in  ex- 
cess of  three  dollars  per  month,  shall  be  punished  by  fine.  It  was 
held  that  a  person  who  charges  and  collects  the  sum  of  three  dollars 
per  month  as  rental  for  the  subscriber's  use,  and  the  sum  of  one  dol- 
lar per  month  as  rental  for  the  use  of  non-subscribers,  is  guilty  of  the 
offense  prohibited:  "For,  divide  the  four  dollars  as  he  might,  and 
designate  the  items  as  he  might,  the  fact  remains  and  is  apparent, 
that  defendant  did  thereby  charge,  collect,  or  receive,  for  the  use  of 
one  telephone  only,  a  sum  in  excess  of  three  dollars  per  month."  ^' 
Xor  can  it  exceed  the  rate  prescribed  by  attempting  to  charge  a  cer- 
tain sum  for  each  conversation,  instead  of  charging  a  regular  rental 
as  where  what  is  known  as  the  exchange  and  rental  system  is  aban- 
doned and  another  system  is  substituted  therefor,  under  which  all 
persons  must  resort  to  stations  fixed  by  the  companies  where  tele- 
phones are  kept  to  be  used  upon  payment  of  a  certain  toll.^^  JSTor  can 
it  be  evaded  by  making  separate  charges  for  the  use  of  various  parts 
of  the  instruments ;  as  where  the  telephone  company  attempted  to  col- 
lect for  the  rental  of  one  magnetic  telephone  and  battery  transmitter 
and  for  labor  and  service  charges  for  switching,  construction  and 
maintenance  charges  for  lines,  batteries,  central  office  apparatus,  mag- 
netic bell  and  other  appurtenances,  and  the  same  exceeding  the  maxi- 
mum sum  prescribed  by  statute.  It  w-as  held  that  all  these  separate 
instruments  fell  under  and  were  comprehended  by  the  term  "tele- 
phone," and  could  be  charged  for  only  in  the  aggregate.^^  But  it  has 
been  held  that  where  the  law  fixes  the  maximum  rate  for  a  telephone 
on  a  separate  wire,  the  statute  is  not  violated  by  additional  charges 
for  equipments,  such  as  auxiliary  bells.^*'  The  fact  that  telephone 
lines  are  operated  under  patents,  granted  by  the  general  government, 

"Johnson  v.  State,   113  Ind.   143,  15  ™ITockett  v.   State,   105  Iiid.  259,  55 

N.  E.  215.  Am.  Rep.  209. 

^Central   U.    Tel.    Co.    v.    State,    118  ""Chesapeake,  etc..  Tel.   Co.   v.  Man- 

Ind.    194,    10   X.    E.   004,   598,    10   Am.  nin.i^.    180    U.    S.    2.''.8,    22    S.    Ct.    Eep. 

St.  Rep.  114.  881. 


§  228]  REGULATION  AND  CONTROL.  217 

in  no  way  affects  the  right  of  the  states  to  regulate  the  charges  on 
these  companies.  As  was  said  by  the  court :  "We  are  of  the  opinion 
that  the  right  conferred  upon  the  patentee  and  his  assigns  to  use  and 
vend  the  corporal  thing  brought  into  existence  by  the  application  of 
the  patented  discovery,  must  be  exercised  in  subordination  of  the  po-  . 
lice  regulation  which  the  state  established  by  statute."  "^ 

§  227.     Statute  rates  must  be  reasonable. 

The  maximum  rate  prescribed  by  these  statutes  must  not  be  un- 
reasonable. So,  if  it  appears  that  the  maximum  rate  allowed  is  less 
than  the  actual  cost  of  service,  the  regulation  is  unconstitutional  as 
denying  to  these  companies  the  equal  protection  of  the  law."'^  A  law 
which  is  not  reasonable  in  its  purposes  is  no  law ;  so,  if  the  legislative 
power  grants  to  a  corporation  the  franchise  to  carry  on  a  legitimate 
corporate  business,  and  then  prescribes  for  them  certain  duties  to  per- 
form and  a  compliance  with  them  would  necessitate  its  carrying  on 
the  business  at  a  constant  loss,  the  requirements  would  be  unreason- 
able at  the  outset  and  of  course  not  binding.  The  charges  must  be 
such  as  that  the  company  may  be  enabled  to  pay  all  expenses  for  car- 
rying on  the  telephone  business,  with  a  reasonable  margin  above  this 
to  pay  the  company  a  sufficient  income  on  the  money  invested.  Of 
course,  this  statement  has  reference  to  a  paying  concern,  and  not  to 
such  as  is  carrying  on  an  unprofitable  or  losing  business ;  the  charges 
must,  however,  be  the  same  on  both,  as  there'  can  be  no  discrimina- 
tion in  charges.  It  is  rather  difficult  to  estimate  what  would  be  a 
reasonable  rate  to  be  charged,  but  a  great  number  of  statutes  have 
been  enacted — and  the  .same  have  been  held  to  be  constitutional  in 
this  respect — which  fix  the  maximum  rate  at  three  dollars  per  month 
for  each  subscriber. 

§  228.     As  to  interstate  messages — cannot  fix  maximum  charges. 

The  state  is  without  power  to  regulate  the  charges  on  interstate 
messages.  Such  messages  fall  under  the  head  of  interstate  commerce, 
and  the  charges  therefore  are  subject  nlonc  to  regulations  prescribed 


o'Hockett  V.   state.   105  Ind.  259.  55       335:  Chesapeake,  etc..  Tel.  Co.  v.  Man- 
.\ni.  Rep.  209.  ning,   186  U.  S.  238.  22  S.  Ct.  R.  881. 

«MYest.  U.  Tel.  Co.  v.  Wvatt.  98  Fed. 


2 IS  TELEGRAPH  AND   TELEPHOlSrE  COMPANIES.  [<^    228 

bj  Congress.  A  statute  ^^  in  Indiana  provided  that  every  telegraph 
company  in  the  state  should  receive  dispatches  from  persons  or 
from  other  lines,  and  on  payment  of  the  usual  charges  ''transmit  the 
same  with  impartiality  and  good  faith  in  the  order  of  time  in  which 
they  Avere  received,  under  penalty"  of  one  hundred  dollars.  The 
statute  also  provided  for  the  preference  of  certain  messages,  and  for 
the  delivery  of  all  messages  by  a  messenger  of  the  receiving  office. 
When  the  validity  of  the  statute  was  tested  in  the  state  court,  upon 
the  issue  as  to  whether  the  sender  of  a  dispatch  from  a  place  in  In- 
diana to  a  place  in  Iowa  could  recover  the  penalty  because  the  com- 
pany's agent  in  the  former  state  failed  to  deliver  the  dispatch  by  a 
messenger  as  required,  it  was  held  by  an  undivided  bench  that  the 
statute  was  valid  and  constitutional,  and  that  the  plaintiff  might  re- 
cover the  penalty.^'*  But  the  decision  of  the  state  court  was  reversed 
on  a  writ  of  error  in  the  United  States  Supreme  Court,  which  held 
that  such  statute  could  be  enforced  only  as  to  messages  sent  between 
points  both  of  which  were  within  the  state.^^ 

§  229.     Must  furnish  services  notwithstanding  charges. 

Where  statutes  have  been  passed  fixing  the  maximum  rates  on  tele- 
phone companies  and  the  same  are  reasonable  charges,  and  a  penalty 
is  prescribed  for  the  violation  of  its  provision,  these  facts  do  not 
abridge  the  right  of  an  aggrieved  party  to  compel  the  telephone  com- 
pany to  furnish  him  with  the  service  to  which  he  is  entitled.  The 
remedy  for  the  aggrieved  party  is  generally  by  a  writ  of  mandamus.^^ 

§  230.     Municipal  control. 

After  having  discussed  at  some  length  the  control  which  the  federal 
and  state  governments  have  over  the  constr^iction  and  maintenance  of 
telegraph  and  telephone  companies,  and  the  manner  and  extent  to 
which  they  may  exercise  this  power,  we  now  take  up  the  subject  with 

«-'Rf'V.  Stat.  §§4176-78.  »« Central    U.    Tel.    Co.    v.    Bradburs', 

**West.  U.  Tel.  Co.  v.  Pendleton,  95  106  Ind.  1,  5.  N.  E.  121;  State  v.  Tel. 

Ind.    12,  48   Am.  Rep.    692;    West.   U.  (D.,  .30  Ohio  St.  296;   Bell  Tel.  Co.  v. 

Tel.  Co.  V.  Meredith,  9.5  Ind.  93.  Com.    (Pcnn.)    3  Atl.  825. 
"'West.  U.  Tel.  Co.  v.  Pendleton,  122 

U.  S.  347,  7  S.  Ct.  Rep.  1126. 


^  231]  KEGULATIOX  AND  CONTROL.  219 

respect  to  the  powers  of  municipalities  exercising  this  authority  over 
these  companies  doing  business  within  their  limits.  The  power  to 
regulate  and  control  the  management  of  streets  rests  primarily  in  the 
state  as  one  of  its  inherent  police  powers.  It  may  prescribe  the  man- 
ner in  which  all  the  streets  shall  be  laid  out  and  the  uses  to  which  they 
may  be  put.  In  fact,  it  may  make  all  such  regulations  with  respect 
to  the  control  over  these  as  will  tend  to  the  protection  of  health,  the 
security  of  property  and  safety  of  life.  It  has  been  contended  by 
many  learned  in  the  law  that  this  power  could  only  be  exercised  by 
the  state ;  ^''  but  it  is  now  held  by  the  greater  preponderance  of  au- 
thority that  the  power  may  be  delegated  to  the  municipality.^^  There 
can  be  no  doubt  that  it  is  competent  for  the  general  assembly  to  dele- 
gate to  municipalities  the  power  to  enact  ordinances  which,  when  au- 
thorized, have  the  force  and  effect  of  laws  passed  by  the  legislature  of 
the  state,  within  the  corporate  limits ;  °^  and  wdthin  the  sphere  of 
their  delegated  powers,  municipal  corporations  have  as  absolute  con- 
trol as  the  general  assembly  would  have,  if  it  had  not  delegated  such 
j)Owers.'^'^' 

§  231.     Powers  limited — generally  specified. 

Of  course,  the  class  of  powers  which  it  is  competent  for  the  legisla- 
ture to  delegate  to  municipal  corporations  is  limited  to  such  as  have 
reference  to  matters  which  form  appropriate  subjects  for  municipal 
regulation.  The  power  granted  must  be  one  which  relates  to  legiti- 
mate and  proper  municipal  purposes.  It  must  be  local  in  its  general 
character  as  well  as  in  its  operation.'^  ^  The  powers  delegated  to  mu- 
nicipal corporations  to  control  their  streets  are  generally  prescribed 
in  the  municipal  charter  or  in  the  general  statutes,  and  the  limit  of 
authority  may  be  delegated  in  a  general  way ;  and,  again,  the  powers 
are  unlimited :  or  the  powers  delegated  may  be  specifically  given ;  and 
whore  this  is  the  case,  the  municipality  cannot  exceed  these  powers."^- 
Thus.  the  state  may  delegate  to  municipalities  a  general    power    to 

"In^ersoll.  230.  "^  Howe  v.  Planifield.  37  N.  J.  L.  140. 

Mid.  "Tnpersoll    377:    1    Dill,    on    Muncp. 

">1   Dill,  on  Mun.   Corp.   §245.  Corp.    (3   Ed.)    §8!):    St.  Louis  v.  Mc- 

™  Taylor  v.   Carondelet,  22  Mo.  110;       Lanahlin.  40  :\Io.  052;  St.  Louis  v.  Her- 

Holand  v.    Lowpll.  3   Allon   408.  tlir^l.  8S  Mo.   128. 


220  TELEGKAPH  AA'D   TELEPHONE   COMPANIES.  [^    231 

manage  and  regulate  the  construction  and  maintenance  of  telepraph 
and  telephone  lines  within  their  limits,  and  this  power  is  generally 
held  to  be  included  in  the  delegation  of  a  general  jDower  of  police  con- 
trol over  streets.'^  Often  the  streets  are  lined  with  an  intricate  web 
of  wires,  actually  or  potentially  charged  with  electric  currents,  which 
are  dangerous  unless  approached  with  caution.  These  wires  are  not 
for  telephone  purposes  alone,  but  also  for  the  transmission  of  elec- 
tricity, and  as  a  source  of  motive  power  and  illumination.  To  per- 
mit these  wires  to  be  indefinitely  increased  upon  the  streets,  without 
some  power  to  regulate  the  manner  of  their  construction,  would  be  a 
source  of  annoyance  and  inconvenience  to  the  municipality.  So, 
when  the  general  power  of  police  regulation  is  delegated  to  a  city,  the 
power  to  regulate  the  construction  and  maintenance  of  these  lines  will 
be  included  therein.  The  municipality  may,  under  the  police  power 
delegated  to  it,  prescribe  the  exact  location  of  poles.  In  granting  a 
franchise  to  one  of  these  companies  to  construct  a  line  upon  the 
streets,  it  may  require  the  company  to  furnish  a  map  showing  the  ex- 
act location  for  the  poles.'**  It  may  require  that  the  poles  shall  be  of 
such  size  and  character  as  not  to  endanger  persons  using  the  streets, 
and  that  they  shall  not  be  unsightly.^  ^  It  may  require  that  the  wires 
shall  be  a  certain  height  above  the  surface  of  the  streets,  and  to  cross 
other  wires  at  a  certain  angle.  And  in  certain  cases,  where  the  con- 
ditions are  such  as  warrant  their  removal  entirely,  the  city  may  com- 
pel the  company  to  dispense  with  their  use  and  to  place  them  under- 
ground.'''^    All  restrictions  imposed  by  a  city  must  be  reasonable.'^''' 

•'Allentown  v.  West.  U.  Tol.  Co.,  148  21  Am.  St.  Rep.  764,  13  L.  R.  A.  454n. 

Penn.  St.   117,  23  Atl.  1070;  West.  U.  affg.  58  Hun     (X.  Y.)    610;   Anerbach 

Tel.  Co.  V.  Philadelphia,   12  Atl.   144;  v.  Cuyahoga,  Tel.  Co.,  9  Ohio  Dec.  389, 

2  Dill,  on  Muncp.  Corp.   (4  Ed.)    §698.  7   Ohio  Np.   633;    Baltimore  v.   Chesa- 

'•' Anerbach  v.   Cuyahoga  Tel.   Co.,   9  peake,    etc.,   Tel.    Co.,    92   Md.    692,   48 

Ohio  Dee.  389,  7  Ohio  N.  P.  633.  Atl.  465;  Geneva  v.  Geneva  Tel.  Co.,  30 

''Forsythev.     Baltimore,    etc.,    Tel.  Misc.    (N.  Y.)   336. 

Co.,    12    Mo.    App.    494;    Hardwick    v.  "Summit   T.   P.   v.   Xew  York,   etc.. 

Vermont,  etc.,  Tel.  Co.,  70  Vt.   180,  49  Tel.  Co.,  57  X.  J.  Eq.  123,  41  Atl.  146; 

Atl.   169.  Xorthwestern  Tel.  Exch.  Co.  v.  Minne- 

'» People  V.  Squire,  145  U.  S.  175,  12  apolis,  81  Minn.  140,  83  X.  W.  527,  53 

S.  Ct.  Rep.  880,  affg.  107  X.  Y.  593,  1  L    R.  A.   175;   Seaboard  Tel.,  etc.,  Co. 

Am.  St.  Rep.  894;   Mutual  U.  Tel.  Co.  v.  Xearny,  68  X.  Y.  App.  Div.  283;  Am- 

V.  Chicago,   16     Fed.     309;     American  orican  U.  Tel.   Co.   v.  Harrison,   31   X. 

Rapid  Tel.  Co.  v.  Hess,  125  X.  Y.  641.  J.  Eq.  627. 


<^  232]  REGULATION  AND  CONTEOL.  221 

§  232.     Power  to  revoke  franchise. 

The  municipal  authority  very  clearly  has  the  right  to  couple  with 
the  permission  to  use  the  streets,  such  conditions  as  the  occupancy  of 
the  streets  by  the  company's  posts  and  wires  suggest;'*  but  this  author- 
ity cannot  at  its  mere  will  annul  the  act  ''■*  which  has  legalized  the 
occupation  of  the  streets,  and  so  leave  the  company's   property    im- 
pressed with  the  character  of  a  nuisance  which  could  be  at  any  time 
abated.®"    For  instance,  if  the  power  to  regulate  and  control  the  con- 
struction and  maintenance  of  these  companies  has  been  delegated  to 
a  municipality  and  permission  has  been  given  to  the  former,  under 
such  authority,  to  construct  their  lines  along  the  streets  after  comply- 
ing with  all  the  conditions  required,  the  same    cannot    be    revoked 
without  good  cause,  when  the  franchise  or  license  has  been  accepted, 
great  expense  has  been  incurred  and  all  conditions  have  been  com- 
plied with.^^    But,  under  the  power  of  police  authority,  these  munici- 
palities may  make  such  changes  in  the  grant  to  these  companies  when 
the  same  is  for  the  interest  of  the  public ;  provided,  vested  rights  are 
not  impaired.     Thus,  a  city  may  require  the  wires  to  be  placed  un- 
derground where  the  condition   or   circumstances   requires   that   the 
same  be  done.®-    When  permission  has  been  granted  to  these  compan- 
ies to  construct  a  line  of  wares  along  the  streets,  they  will  not  be 
treated  as  trespassers,  and  their  works  declared  a  nuisance,  if  they 
are  so  constructed  as  not  to  interfere  with  the  use  of  the  streets  by  the 
public.®^     But  if  they  should  become  a  nuisance  for  any  reason,  the 
city  authority  has  a  right  to  abate  their  works  by  virtue  of  its  general 
power  to  protect  the  public  interest  in  the  streets.®^ 

■*1  Dill.  On  Mun.  Corp.   §§555,  558,  Anderson,   12   X.   Dak.    585,   98   X.   W. 

575.  TOG,   102.  Am.   St.   Rep.   580,  65  L.   R. 

"  Xorth western  Tel.  Exch.  Co.  v.  An-  A.  771. 

derson,  12  X.  Dak.  585,  98  N.  W.  706,  •«  See  note  76  for  reference  cases. 

102   Am.    St.    Rep.    580,    65    L.    R.    A.  "Southern  Bell  Tel.  Co.  v.  Francis, 

771.  10!)  Ala.  224,  19  So.  1,  55  Am.  St.  Rep. 

^Hudson  Tel.  Co.  v.  Jersey  City,  49  030,  31  J..  R.  A.  193. 

X.  J.  L.  303,  60  Am.  Rep.  619,  8  Atl.  "*  Xew  York,   etc.,   Tel.    Co.   v.   East 

123.  Orange,  42  X.  J.  Eq.  490,  8  Atl.  289; 

"Hudson  Tel.  Co.  v.  Jersey  City,  49  :Mut.  U.  Tel.  Co.  v.   Chicago,   16  Fed. 

X.  J.  L.  303,  8  Atl.   123,  60  Am.  Rep.  309. 
619;    Xorthwestern    Tel.    Exch.    Co.    v. 


222  TELEGRAPH  AND  TELEPHONE  COMl'ANIES.  [^    233 

§  233.     Cannot  impose  tax  or  license — not  police  power. 

It  has  been  held  that  a  telegraph  company  whose  business  is  the 
transmission  of  messages  from  one  state  to  another  and  which  is  in- 
vested with  the  powers  and  privileges  conferred  bj  Congress,  cannot 
be  forced  by  the  state,  as  a  condition  of  doing  business  in  its  juris- 
diction, to  pay  a  license  tax,  the  same  being  free  from  the  control  of 
state  regulations,  except  such  as  are  strictly  of  a  police  character.^ ^ 
It,  therefore,  follows  that  a  city  which  derives  all  its  powers  from  the 
state  has  no  authority,  under  the  power  to  regulate  the  control  of  the 
streets,  to  impose  a  license  on  these  companies.  Licenses  for  this 
purpose  do  not  fall  under  the  head  of  police  power  and  subjected, 
therefore,  to  the  state  control.^^  But  a  municipal  corporation  has  a 
right,  and  it  is  its  duty  in  the  exercise  of  the  police  power,  to  super- 
vise and  control  the  erection  and  maintenance  of  telegraph  and  tele- 
phone poles  and  wires  within  its  limits,  and  if  the  license  is  imposed 
for  the  purpose  of  inspecting  this  work,  it  will  fall  under  the  police 
power  and  therefore  subject  to  such  license;  ^'^  or  if  the  imposition  is 
in  the  nature  of  a  rental,^ ^  it  may  be  enforced.  Thus,  where  an  or- 
dinance compelling  a  telegraph  company  to  pay  five  dollars  per  an- 
num for  every  pole  within  the  city  "for  the  privilege  of  using  the 
streets,  alleys  and  public  places,"  is  a  charge  in  the  nature  of  a  ren- 
tal, and  it  makes  no  difference  that  these  companies  are  doing  inter- 
state business ;  but  the  charges  imposed  must  be  reasonable,  which  is 
a  subject  open  to  judicial  investigation.^^  It  has  been  held  that  five 
dollars  for  each  pole  per  annum  was  not  an  unreasonable  charge.®*' 
The  legislature  may,  in  express  terms,  delegate  the  power  to  a  city  to 
impose  a  tax  or  license  on  these  companies,  where  the  same  is  not 
done  by  the  state,  yet  this  delegated  power  will  not  give  the  city  the 

^^Leloup  V.  Mobile,  127  U.  S.  640,  8  Cable  Co.,  21  N.  Y.  Supp.  556;   Ches- 

R.  Ct.  Rep.  1380.  ter  v.   West.  U.  Tel.  Co.,   152   Pa.  St. 

«■  New  Orleans  V.  Great  Southern  Tel.  464;   25  At\.   1134;   West.  U.  Tel.  Co. 

etc.,  Co.,  3  So.  533.  v.  Philadelphia,  12  Atl.  144. 

""  Leloup  V.  Mobile,  127  U.  S.  640,  8  '» St.  Louis  v.  West.  U.  Tel.  Co.,  39 

8.   Ct.  Rep.    1380;    Wisconsin  Tel.  Co.  Fed.  59;  New  Orleans  v.  Great  South- 

V.  Oshkosh,  62  Wis.  32,  21  N.  W.  828.  ern  Tel.    Co.,   40   La.   Ann.    41,    3    So. 

«*  Allentown  v.  West.  U.  Tel.  Co.,  148  533. 

Pa.  St.  117,  23  Atl.   1070,  33  Am.  St.  »» St.  Louis  v.  West.  U.  Tel.  Co.,  39 

Rep.   820;    Philadelphia  v.   Postal   Tel.  Fed.  59. 


<^  234]  KEGULATIOX  AXD  CONTROL.  223 

power  to  make  such  an  imposition  on  the  business  of  interstate  com- 
merce: and  while  these  companies  may  be  doing  an  interstate  com- 
merce business,  yet  business  which  is  carried  on  exclusively  within 
the  state  may  be  subject  to  such  taxes.^^  The  same  rule,  which  ap- 
plies to  the  reasonableness  of  charges  as  rental  of  the' space  occupied 
by  the  poles  of  these  companies,  applies  to  the  taxes  which  the  mu- 
nicipality has  the  power  to  impose  under  the  delegated  authority.  In 
other  words,  the  taxes  imposed  on  these  companies  as  a  purpose  of 
revenue  must  not  be  excessive.®^  What  is  a  reasonable  charge  is  a 
question  of  fact,  and  what  would  be  reasonable  in  one  instance  might 
not  be  in  another.  For  instance,  if  the  poles  were  in  a  crowded  and 
busy  part  of  the  city,  the  amount  to  he  charged  should  not  be  the 
same  as  that  which  should  be  imposed  in  a  small  country  town  where 
the  property  is  not  so  expensive."^ 

§  234.     Cannot  regulate  rate — without  express  authority. 

A  municipal  corporation  cannot  regulate  the  charges  for  services 
unless  the  right  has  been  expressly  delegated  to  it,  as  this  right  is  not 
embraced  in  the  general  police  power  of  the  city.  There  is  no  ques- 
tion but  that  this  power  may  be  delegated  to  the  municipality,  yet  it 
must  be  done  in  express  terras.  As  the  city  government  is  only  a 
part  of  the  whole  government  which  constitutes  the  commonwealth 
and  is,  therefore,  subservient  to  the  management  of  the  whole,  it  can 
not  enforce  any  rule  of  law  Avhich  would  be  inconsistent  with  the 
whole ;  b\it  can  exercise  only  such  powers  as  may  be  delegated  to  it, 
in  clear  and  in  expressed  terms.  The  question  as  to  whether  the  mu- 
nicipal corporation  has  the  right  to  regulate  the  charges  for  tele- 
phone services,  doing  business  within  its  limits,  was  declared  in  a 
case  which  went  up  from  the  City  of  St.  Louis.  The  charter  of  this 
city  gave  the  mayor  and  the  assembly  power  "to  license,  tax,  and 
regulate  telegraph  companies  or  corporations,"  and  it  might  "pass  all 
such  ordinances,  not  inconsistent  with  the  provisions  of  this  charter  or 
the  laws  of  the  state,  as  may  be  expedient,  in  maintaining  the  peace, 
good  government,  health,  and  welfare  of  the  city,  its  trade,  comraerc 

»i Moore  v.  Eufaula,  11  So.  921.  •'St.  Louis  v.  West.  U.  Tel.  Co..  39 

"St.  Louis  V.  West.  U.  Tel.  Co.,  39  Fed.  59;  Chester  v.  West.  U.  Tel.  Co.. 
Fed.  59.  ].">3  Pa.  f^t.  4G4,  25  Atl.  1134. 


22-i  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  [<§    234 

and  manufactures."  The  court  held  in  that  case,  that  the  fact  that  the 
city  had  to  regulate  the  use  of  the  streets  with  respect  to  the  construc- 
tion of  the  telephone  lines  thereon,  did  not  give  it  the  right  to  regu- 
late the  charges  for  telephone  services,  nor  did  it  have  the  power,  un- 
der its  charter,  to  regulate  the  rate  under  its  general  police  power.^* 

"St.  Louis  V.  Bell  Tel.  Co.,  96  Mo.       370;   State  v.  Sheboygan,  111  Wis.  23, 
623,  2  L.  R.  A.  278n,  9  Am.  St.  Rep.       86  N.  W.  657. 


CHAPTER  XII. 

DUTIES  TO  FURNISH  EQUAL  FACILITIES  TO  ALL. 

§  235.    Telegraph — in  general. 

236.  Same  continued — duty  to  furnish. 

237.  Must  have  sufficient  facilities. 

•    238.  Must  transmit  in  order  in  which  received. 

239.  Discriminations — cannot  make. 

240.  Same  continued — discrimination — must  be  just. 

241.  Same   continued— reasonable  discriminations. 

242.  Reasonableness  of  rates — how  determined. 

243.  Telephone  companies — furnish  equal  facilities. 

244.  Same  continued— whether  private  or  incorporated  concerns. 

245.  Statutes— declaratory  of  common  law. 

246.  Must  furnish  equal  service  and  facilities. 

247.  Same  continued — terms. 

248.  Whom  to  serve— persons   conducting   legitimate   business. 

249.  Same  continued — other  corporations. 

250.  When  may  refuse  to  furnish  services— abusive  language. 

251.  Same  continued— on  refusal  to  pay  charges  or  rent— other 

reasons. 

252.  Being  lessees  of  patents — no  excuse. 

253.  Lessee's  ground  for  refusal. 

254.  Remedies — mandamus. 

255.  Proper  parties. 

256.  By  injunction. 

§  235.     Telegraph — in  general. 

In  discussing  the  subject  of  the  duty  of  these  companies  to  furnish 
equal  facilities  to  all,  we  shall  treat  each  company  separately,  as  the 
manner  in  which  the  husine-s  of  the  two  i,^  conducted  differs  slightly 
in  some  respects.^  The  law  a|)])licalili'  rlicrcto,  therefore,  is  not  the 
same  at  all  liiiics.  It  is  not  our  ])ur]i()>c  to  be  understood  as  saying 
that  there  is  such  material  difference  in  the  way  the  business  of  the 
two  is  carried  on  that  the  law,  with  respect  to  this  subject,  could 
not  be  ap-plied  equally  to  Iwth,  for  such  is  imt  our  ].uriiose,  but  that 
the  two  may  be  satisfactorily  treated  separately  in  such  a  way  as  may 
be  more  clenrlv  understood  by  the  reader.      We  sball  first  refer  to 

'Central    l'.     Ifl.    (o.    v.    Falloy.    118        lii.l.    1!M.    10   Am.   St.   Rpp.    U4,    10   N. 

K.   t;()4. 
T.  &  T.— 15 

(225) 


226  TELEGKAPH  AND  TELEPHONE  COMPANIES,  [<§>    235 

the  duty  of  telegraph  companies  to  furnish  equal  facilities  to  all  who 
comply  with  their  reasonable  regulations. 

§  236.     Same  continued — duty  to  furnish. 

TelegTaph  companies  are  not  common  carriers  under  the  common 
law,  but  have  been  declared  to  be  such  by  statutes  in  most  of  the 
states  and  are  thereby  made  subject  to  all  the  laws  applicable  to  com- 
mon carriers.  They  may  or  may  not  become  incorporated,  but  if  they 
have  the  power  to  exercise  some  of  the  rights  of  the  government,  such 
as  the  right  of  eminent  domain,  they  are  then  impressed  with  a  pub- 
lic interest  and  are  under  a  legal  obligation  to  serve  with  impartiality 
all  who  apply  to  them  after  complying  with  their  reasonable  regula- 
tions.^ When  the  government  grants  to  any  corporation  or  per- 
son some  of  its  rights,  it  takes  in  lieu  thereof  an  interest  in  the 
granted  business ;  and,  when  one  is  the  owner  of  the  property  which 
is  devoted  to  a  public  use  and  in  which  the  public  has  acquired  an  in- 
terest, he,  in  effect,  grants  to  the  public  an  interest  in  such  use  and 
must,  to  the  extent  of  that  interest,  submit  to  be  controlled  by  the 
government  for  the  common  good  as  long  as  such  is  maintained.^ 
One  of  the  great  requirements  which  the  government  demands  of 
every  institution  impressed  with  a  public  interest — and  one  which  is 
thrown  over  every  citizen  as  a  great  and  protective  shield — is  the 
duty  to  act  impartially  with  all.^  They  are  under  obligations  to  ex- 
tend their  facilities  to  all  persons,  on  equal  terms,  who  are  willing 
to  comply  with  their  reasonable  regulation,  and  to  make  such  com- 
pensation as  is  exacted  for  others  in  like  circumstances. 

§  237.     Must  have  sufficient  facilities. 

In  order  that  a  telegraph  company  may  be  able  to  carry  out  the  du- 
ties which  it  owes  to  the  government,  it  must  in  the  first  place  equip 
its  business  so  that  all  unfavorable  emergencies    may    be    dispensed 

? 

^  State  V.  American,  etc.,  Commercial  ter-Ocean  Pub.  Co.  v.  Associated  Press. 

News  Co.,  43  N.  J.  L.  381;   West.  U.  184  111.  438,  75  Am.  St.  Rep.   184,  56 

Tel.  Co.  V.  Call.  Pub.  Co.,  44  Neb.  326,  N.  E.  822,  48  L.  R.  A.  568. 
62  N.  W.  506,  48  Am.  St.  Rep,  729,  58  *  Reed  v.  West.  U.  Tel.  Co.,  135  Mo. 

Neb.   192,   78   N.   W.   519.  OGl,  37  S.  W.  904,  58     Am.     St.     Rep. 

»Munn  V.  Illinois,  94  U.  S.  113;   In-  (iOi),  34  L.  R.  A.  492. 


<§    238]  EQUAL  FACILITIES  TO   ALL.  227 

with  in  the  shortest  possible  time  and  in  the  most  eificient  and  careful 
manner.  It  is  the  duty  of  a  company  to  have  sufficient  facilities  to 
transact  all  business  offered  to  it  for  all  points  where  it  has  offices; 
and  if  the  press  of  business  offered  is  so  great  that  one  wire  or  one 
operator  at  a  point  is  not  sufficient,  it  is  the  duty  of  the  company  to 
add  another  wire  or  an  additional  employee.^  It  must  not  only  have 
sufficient  facilities  to  carry  out  its  business,  but  it  also  must  be  pro- 
vided with  competent  servants  and  suitable  instruments  for  this  pur- 
pose; and  on  a  failure  to  do  so,  whereby  injuries  or  losses  are  in- 
curred, it  must  respond  in  damages.^  In  the  case  of  telephone  com- 
panies, each  person  has  the  right  to  demand  and  receive  a  telephone 
and  telephonic  connections,  facilities  and  services,  and  the  best  in 
use  by  such  companies.  ISTot  only  is  it  necessary  that  these  companies 
should  furnish  the  best  facilities  which  they  may  have  in  use,  but 
they  must  furnish  the  very  best  equipped  and  most  up-to-date  instru- 
ments to  be  used  by  any  similar  companies.''^  These  companies  vol- 
untarily engage  in  a  public  duty ;  they  solicit  the  public  to  transact 
business  with  them  on  reasonable  terms,  and  when  they  have  placed 
themselves  before  the  public  to  perform  such  business  as  may  be  ten- 
dered, they  must  exercise  due  care  to  carry  out  all  such  duties ;  and 
in  order  to  do  this,  they  must  prepare  and  furnish  the  best  instru- 
ments and  extend  impartial  favors  toward  the  public. 

§  238.     Must  transmit  in  order  in  which  received. 

One  of  the  duties  imposed  upon  telegraph  companies  is,  that  they 
must,  with  few  exceptions,  transmit  all  messages  tendered  them,  af- 
ter a  reasonable  compliance  with  their  rules  and  regulations,  in  the 
order  in  which  they  are  received.^  These  companies  are  under  a 
legal  obligation  to  the  public  to  carry  out  this  part  of  their  duties  to- 

=>Leavell    v.    West.    U.    Tel.   Co.,    116  "Hood  v.  ^Vost.  U.  Tel.  Co.,   135  Mo. 

N.  Car.  211,  21  S.  E.  301,  27  L.  R.  A.  G61,  .58  Am.  St.  Rep.  609,  34  L.  R.  A. 

843,  47  Am.'st.  Rep.  798 ;  West.  U.  Tel.  492. 

v:o.  V.  Hudson,  89  Ala.  510,  7  So.  419.  ''Central   U.  Tel.  Co.  v.   Falley,   118 

18   Am.    St.   Rep.    148;    West.   U.   Tel.  Ind.   194,   10  Am.  St.  Rep.  114,   19  N. 

Co.  V.  Broesche,  72  Tex.  654,  13  Am.  St.  E.  604. 

Rep.     843.       See     extended     note     in  'Mackay  v.     West.  U.  Tel.  Co..     16 

West.  U.  Tel.  Co.  v.  Blancliard,  45  Am.  Neb.  223;  Reiitii  v.  Electric  Tel.  Co.,  6 

Rep.  487.  El.  &  Bl.  341,  88  E.  C.  L.  341. 


228  TELEGRAPir   AND   TELEPIIOXE   CO:\rPANIES.  [§    2'.}>> 

Avard  the  i)ublic  for  obtainino-  so  great  a  right  as  that  of  assuming 
public  functions  and  enjoying  public  immunities :  and  the  same  must 
be  observed  unless  the  statutes  of  the  state,  or  i)ublie  policy  demands 
that  certain  other  messages  shall  have  precedence  over  these.  In 
many  states  there  have  been  statutes  passed  which  require  that  mes- 
sages be  transmitted  in  the  order  in  which  they  are  received,^  but  it 
seems  that  the  companies  are  under  this  obligation  even  though  there 
are  no  statutes  to  this  effect.  If  they  were  permitted  to  exercise  their 
own  judgment  with  respect  to  the  time  and  manner  in  which  the  mes- 
sages should  l)e  delivered,  partiality  would  in  many  instances  be 
shown,  which,  as  we  heretofore  said,  could  not  be  done.  It  neces- 
sarily follows,  therefore,  that  messages  should  be  transmitted  in  the 
order  in  wliieh  they  are  received,  even  in  the  absence- of  a  statute  to 
that  effect.  There  are  some  messages  which,  through  legislative  enact- 
ments, are  entitled  to  a  preference  over  those  which  would  otherwise 
have  precedence;  where  such  is  the  case,  those  messages— such  as  per- 
tain to  the  government,  those  for  and  from  officers  of  justice,  and 
those  for  publication  of  general  and  public  interest — have  the  right 
of  way.^*^  It  is  considered,  where  the  public — or  any  of  its  ser- 
vants— is  the  sender  of  messages,  that  thev  are  alwavs  of  some  conse- 
quence,  and  that  not  only  one  but  many  people  are  directly  or  indi- 
rectly interested  in  the  results,  and  a  failure  to  promptly  and  im- 
mediately send  same  in  preference  to  those  otherwise  having  priority, 
would  inflict  a  loss  not  only  upon  one  of  its  citizens  but  on  many  ; 
for  this  reason  some  of  the  legislatures  have  seen  fit  to  give  them 
preference.  It  has  also  been  held  that  these  companies  are  under  ob- 
ligations to  give  preference  to  all  private  messages  where  they  have 
been  informed,  either  by  the  sender  or  by  the  face  of  the  message, 
that  their  immediate  transmission  and  delivery  was  of  the  utmost 
importance.  It  seems  that  such  messages  as  these  should  have  pre- 
cedence over  those  given  preference  by  statute,  should  the  former 
clearly  a])])ear  to  be  of  more  consequence  than  the  latter.  It  is  pre- 
sumed that  those  given  preference  by  statute  are  of  much  importance, 
Ijut  the  presumption  may  be  overcome  if  it  clearly  appears  from  an 
inspection  of  the  private  message  that  it  is  of  greater  importance  than 
the  former.      The  telegraph   eoiii])any   is  often  ignorant   of  the  real 

"Orav  (111  'IVl.  §20.  '"Criiy  (ni  Tel.  S  20  note  2. 


§    239]  EQUAL   KACILITIKS   TO   ALL.  22'9 

iiicauiijg  of  a  telegram;  and,  while  it  may  be  assured  of  its  meaning, 
it  eannot  always  know  its  full  importance,  as  the  importance  of  a 
message  often  depends  on  other  circumstances  surrounding  the  par- 
ticulnr  message.  The  comf)any  cannot,  therefore,  always  know  what 
importance  should  be  given  to  messages,  and  if  this  fact  should  be  left 
r  )  its  own  consideration,  it  might  often  be  mistaken  in  its  judgment; 
.iiid  on  this  account  preferences  might  be  given  to  some  which  would 
not  be  thereto  entitled.  It  is  not  a  good  policy  anyway  to  give  these 
companies  this  power;  for  they  might  take  advantage  of  the  power 
and  give  preference,  many  times,  to  messages  which  should  be  trans- 
mitted in  the  regular  order  in  which  they  are  received.  It  is,  there- 
fore, much  the  better  policy  to  demand  of  them  to  transmit  the  mes- 
sages in  the  order  in  which  they  are  received. 

§  239.     Discriminations — cannot  make. 

Telegraph  com])anics  are  public  servants,  and  it  would  be  a  viola- 
tion of  the  duties  which  they  owe  to  the  public  if  they  were  allowed 
to  unjustly  discriminate  with  respect  to  their  charges  where  the  con- 
ditions are  the  same.^^  They  are  exercising  public  functions  and  are 
allowed  the  right  to  make  reasonable  charges  for  their  services;  but 
they  must  be  imposed  equally  on  all,  where  the  circumstances  are 
(•(jual.  This  is  a  common-law  principle  and  could  be  enforced  in  the 
absence  of  a  statute  to  that  effect.  While  the  charges  of  these  com- 
panies, which  are  carrying  on  interstate  commerce  business,  should 
be  regulated  by  the  federal  laws,  and  punishment  imposed  on  all  who 
violate  same,  yet  in  the  absence  of  such  laws  the  state  may  either  by 
a  constitutional  provision  or  legislative  enactment,  pass  and  enforce 
such  law  even  as  to  charges  for  interstate  business.  Many  states  of 
the  Union — and  England — have  passed  statutes  prohibiting  these 
companies  from  unjustly  discriminating :  it  has  been  held  that  so  far 
as  these  statutes  affect  civil  actions — disregarding  the  penalties  im- 
posed— are  they  anything  more    than    declaratory    of    the    common 

"Hays  V.  Pennsylvania,  etc.,  Co.,    l-.i  Duiroo  v.   Portland,  etc..  R.  Co.,  52  N. 

Fed.  311:      Chicago,     etc.,     R.  Co.     v.  ii.  4:^0.  13  Am.  Rep.  72;  West.  U.  Tel. 

Parks,  18  HI.  4G0,  G8  Am.  Dec.  562;  In-  Co.   v.   Call   Pub.   Co.,  44  Neb.  32G.  48 

dianapolis.   etc..   R.    Co.   v.   Ervin.    118  Am.  St.  Rep.  729,  62  N.  W.  506.  27  L., 

111.   2.-)n.   S   X.   E.   S62;    St.  Louis,  etc.,  K.  A.  022. 
i;.   I  o.    V.    Hill.    14   111.   App.   579;    :Mc- 


230  TELEGKAPH  AXD  TELEPHONE   COMPANIES.  [^    239 

law.^-  When  it  is  incorporated  in  the  constitutional  provision  that 
telegraph  companies  shall  not  unjustly  discriminate  in  their  charges, 
it  must  be  construed  as  establishing  the  limits  of  legislative  author- 
ity upon  this  subject,  and  not  as  giving  authority  to  declare  all  dis- 
criminations as  unjust  ^^ — as  it  will  be  seen  in  the  following  section. 

§  240.     Same  continued — discrimination — must  be  just. 

It  is  not  every  discrimination  which  is  unjust,^"*  since  there  may 
be  conditions  surrounding  the  particular  case  which  would  entitle 
telegraph  companies  to  make  discriminations  among  their  patrons. 
These  companies  certainly  have  the  right  to  demand  a  reasonable 
compensation  for  their  services,  and  where  the  conditions  pertaining 
to  the  transmission  and  delivery  of  messages  are  similar  in  every  re- 
spect, they  should  not  be  permitted  to  discriminate  in  their  rates ;  but 
in  many  cases  the  conditions  are  not  similar  and  where  this  is  the 
case,  it  is  not  unjust  discrimination.  It  is  not  contrary  to  the  com- 
mon law  nor  is  it  contrary  to  the  statute  to  make  a  difference  in  the 
charges.  It  has  been  held  that  the  true  rule  on  this  subject  is  that 
the  rates  must  not  only  be  reasonable  in  themselves,  but  must  be 
relatively  reasonable ;  that  is,  they  must  first  be  reasonable,  and  then 
they  must  not,  without  a  just  and  reasonable  ground  for  discrimina- 
tion, render  to  one  patron  services  at  a  less  rate  than  it  renders  to  an- 
other, where  such  discrimination  operates  to  the  disadvantage  of 
that  other. ^^  They  must  not  discriminate  in  rates  between  patrons 
so  as  to  give  one  an  undue  preference  over  another.  It  is  not  an  un- 
due preference,  however,  to  make  to  one  patron  a  less  rate  than  to  the 
other,  when  there  exist  differences  in  conditions  as  to  the  expense  or 
difficulty  of  the  services  rendered  which  fairly  justifies  such  a  differ- 
ence in  rates.  ^^  This  question  was  very  elaborately  discussed  in  a 
case  in  which  a  newspaper  company  instituted  an  action  for  dam- 
ages against  a  telegraph  company  Avhich  was  transmitting  news  for 

"Id.  McDnlTee  v.   Portland,  etc.,  R.   Co.,   52 

"Id.  N.  H.  430,  13  Am.  Rep. '72. 

'*Root  V.  Long  Island  R.  Co.,  114  N.  ^°  West.  U.  Tel.  Co.  v.  Call  Pub.  Co., 

Y.  300,  11  Am.  St.  Rep.  643;  Johnson  44  Neb.   326,   62  N.   W.  506,  27   L.  R. 

r.  Pensacola,  etc.,  R.  Co.,  16  Fla.  623,  A.  622,  48  Am.  St.  Rep.  729. 

26  Am.  Rep.  731 ;  Chicago,  etc.,  R.  Co.  "  Id. 

V.  People,  67  111.  11,  16  Am.  Rep.  599; 


<§    241]  EQUAL   FACILITIES   TO    ALL.  231 

the  Associated  Press  at  Cliicago,  fur  unjustly  discriminating  against 
the  plaintiff  and  in  favor  of  another  paper  company  doing  business 
in  the  same  place.  The  Associated  Press  was  furnishing  news  to 
both  of  these  papers,  but  it  was  shown  that  the  plaintiff  was  an  even- 
ing paper — the  other  being  a  morning  paper — and  received  its  news 
during  the  day,  when  the  telegraph  company  was  necessarily  very 
busily  engaged  in  other  general  telegraphic  business,  and  at  a  time 
when  its  w^ires  could  ea^sily  have  been  put  to  other  uses.  The  other 
paper  did  not  receive  its  news  until  night,  and  at  a  time  when  the  de- 
fendant was  not  being  rushed  with  work  and  incurring  the  expense 
to  which  it  was  subjected  during  the  day.  The  court  held  in  this 
case  that,  notwithstanding  the  fact  that  the  news  was  transmitted 
over  the  same  wire  of  defendant  company,  from  the  same  place  to  the 
same  place,  and  that  the  same  amoimt  of  skill  and  care  was  necessary 
in  both  cases,  yet  the  expense  incurred  in  the  transmission  of  mes- 
sages to  the  plaintiff  was  so  much  greater  than  that  incurred  in  the 
transmission  to  the  other  paper,  that  the  defendant  had  the  right  to 
discriminate  in  the  rates  between  the  two,  and  that  it  was  not  an  un- 
just discrimination.^"^ 

§  241.     Same  continued — reasonable  discriminations. 

Where  the  conditions  respecting  the  transmission  of  messages  for 
two  patrons  are  different,  in  that  the  expense  and  trouble  incurred  in 
the  transmission  of  one  is  greater  than  in  the  other,  the  telegraph 
company  may  discriminate  in  the  charges.  Discriminations  made 
in  good  faith,  because  of  such  differences  in  the  expense  of  trans- 
mission— and  proportional  with  reference  thereto — are  undoubtedly 
just,  but  it  devolves  upon  these  companies,  relying  upon  such  facts 
as  a  defense  to  a  suit  for  unjust  discrimination,  to  prove  them  to  the 
satisfaction  of  the  court. ^^  Thus,  where  the  same  messages  are  trans- 
mitted by  the  same  company,  from  the  same  place  to  two  patrons  of 
the  same  place,  but  the  messages  are  received  at  different  times  dur- 
ing the  day  and  at  times  when  the  expenses  and  trouble  in  the  trans- 
mission are  different,  the  company  may  discriminate  in  its  rates. ^®  A 

"Id.  '"West.  U.  Tel.  Co.  v.  Call  Pub.  Co.. 

"People  V.  Wabash,  etc.,  K.  Co.,  104       44  Xeb.  32G,  62  X.  W.  506,  27  L.  E. 
111.  476;  Portsmouth,     etc.,  R.  Co.     v.       A.  622,  48  Am.  St.  Rep.  729. 
Forsayth,  59  N.  H.  122;  St.  Louis,  etc., 
R.  Co.  V.  Hill.  14  111.  App.  579. 


232 


TELEGKAPII   A>'D   TELEPHONE   COMPANIES. 


[§  241 


telegraph  company  may  also,  imless  restrained  by  statute,  discrimi- 
nate in  favor  of  longer  distances.-"  But  these  companies  cannot  dis- 
criminate against  a  person  who  refuses  to  patronize  them  exclus- 
ively.^^  And  it  is  not  a  legitimate  ground  for  giving  a  preference  to 
one  patron  that  he  engages  to  employ  other  lines  of  the  company  for 
the  transmission  of  news  distinct  from  and  unconnected  with  the 
message  in  question,^-  A  telegraph  company  cannot  discriminate  in 
favor  of  itself  or  any  of  its  employees  as  against  other  patrons.^^  A 
contract  by  which  a  telegraph  company  agrees  to  transmit  for  one 
person  at  cheaper  rates  than  it  was  transmitting  for  other  patrons 
and  the  public  generally  in  like  circumstances,^*  under  the  same  con- 
ditions and  for  like  distances,  is  void  as  creating  an  illegal  prefer- 
ence and  making  an  unjust  discrimination.  And  a  contract  by  which 
a  telegraph  company  gives  to  a  railroad  company  a  preference  over 
its  lines  to  the  exclusion  of  others,  is  an  illegal  discrimination  and 
does  not  justify  it  in  exacting  an  extra  tariff  for  sending  a  message 
over  the  line  of  another  company  to  a  point  at  which  it  also  has  a 
line.^°     These  companies  cannot  discriminate  in  favor  of  a  patron 


'"St.  Louis,  etc.,  R.  Co.  v.  Hill.  14 
111.  App.  579;  Hirsh  v.  Noith<rn  C.  R. 
Co.,  74  Pa.  St.  188. 

^Menacho  v.  Ward,  27  Fed.  529; 
Gwynn  v.  Citizens'  Tel.  Co..  69  S.  Car. 
434^,  48  S.  E.  460,  67  L.  R.  A.  Ill,  104 
Am.  St.  Rep.  819.  In  this  last  case 
a  contract  between  a  telephone  com- 
pany and  a  customer  that  the  former 
■nould  put  in  a  telephone  for  the  use  of 
the  latter  on  condition  that  he  would 
not  use  another  telephone  system  was 
held  to  be  void  as  in  restraint  of  trade 
and  against  public  policy  as  tending  to 
create  a  monoply.  See,  also.  State  v. 
Citizens'  Tel.  Co.,  61  S.  Car.  83,  39  S. 
E.  257,  55  L.  R.  A.  139,  85  Am.  St. 
Rep.  870,  in  which  it  was  held  that 
mandamus  was  the  proper  proceeding 
to  compel  a  company  to  furnish  ser- 
vices. Central  U.  Tel.  Co.  v.  Falley, 
118  Ind.  194,  19  N,  E.  604,  10  Am.  St. 
Rep.  114;  State  v.  Nebraska  Tel.  Co., 
17  Neb.  126,  52  Am.  Rep.  404.     Manda- 


mus, however,  does  not  lie  to  compel 
the  performance  of  an  unlawful  act: 
See  note  to  Dane  v.  Derby,  89  Am. 
Dec.  731  and  it  could  not  be  compelled 
to  furnish  facilities  to  a  bawdy  house: 
(iodwin  V.  Tel.  Co.,  136  N.  Car.  258, 
4,S  S.  E.  630,  103  Am.  St.  Rep.  941, 
67  L.  R.  A.  251. 

-'-  Baxendale  v.  Great  Western  R.  Co. 
1  Nev.  <t  Macn.  191;  Bellsdyke  Coal 
Co.  V.  North  British  R.  Co.,  2  Id.  105. 

-^  Cumberland  Valley  R.  Co's.  Ap- 
peal, 62  Pa.  St.  218. 

-*  Indianapolis,  etc.,  R.  Co.  v.  Erwin, 
118  111.  250,  8  N.  E.  862;  Messenger  v. 
Pennsylvania  R.  Co.,  36  N.  J.  L.  407, 
13  Am.  Rep.  451;  37  N.  J.  L.  531,  18 
Am.  Rep.  754;  Scofield  v.  Railway  Co., 
43  Ohio  St.  571,  54  Am.  Rep.  846,  3 
N.  E.  907. 

^^•Leavell  v.  West.  U.  Tel.  Co.,  116 
X.  Car.  211,  47  Am.  St.  Rep.  798,  21 
S.   K.  391,  27  L.  R.  A.  843. 


§    242]  EQUAL  FACILITIES   TO   ALL.  233 

having  a  large  ainouiit  of  business  with  them,  as  it  tends  to  create 
monopoly,  to  destroy  competition,  and  is  contrary  to  ijublic  policy;  '* 
neither  can  they  give  discriminatory  rates  to  a  particular  person  for 

the  purpose  of  obtaining  his  business.-'' 

§  242.     Reasonableness  of  rates — how  determined. 

While  the  general  rule  is  that  the  rates  of  telegraph  companies 
must  not  only  be  reasonable  in  themselves  but  must  be  relatively  rea- 
sonable, yet  it  is  rather  difficult  in  many  cases,  where  it  is  claimed 
that  there  is  an  unjust  discrimination  between  two  patrons,  to  de- 
termine the  reasonableness  of  one  rate  and  the  unreasonableness  of 
the  other;  or,  more  strictly  speaking,  the  relatively  reasonable  rates 
of  the  two,  where  a  just  discrimination  can  be  made.-®  It  has  been 
held  by  some  courts  that  no  cause  of  action  can  be  predicated  upon 
the  mere  fact  that  another  patron  obtained  services  for  a  less  rate,  un- 
less it  be  shown  that  the  rate  charged  complainant  is  in  itself  un- 
reasonable and  excessive.-*^  There  must  be  some  rate  which  is  con^ 
sidered  reasonable  wdthin  itself  or  some  standard  of  measurement  to 
be  used  as  a  guide  for  the  jury  in  determining  the  reasonableness  of 
a  rate,  and  w-hether  or  not  this  is  relatively  reasonable  with  another 
rate  imposed,  where  the  conditions  respecting  the  transmission  of  the 
two  are  different.  The  jury  must  have  some  guide  of  this  kind,  in 
order  to  arrive  at  a  proper  conclusion;  as  was  said:  "How  can  it 
be  said  that  a  jury  acts  upon  evidence  and  reaches  a  verdict  solely 
upon  consideration  thereof  when,  having  established  a  difference  in 
rates  and  a  difference  in  conditions,  without  anything  to  show  how 
one  difference  affects  the  other,  or  to  what  extent  it  is  permitted  to 
measure  one  against  the  other,  and  to  say  that  to  the  extent  of  one 

-'  Scofield  V.   Railway   Co.,   43     Ohio  ^  Baxendale   v.   Eastern   Counties   R. 

St.  571,  3  N.  E.  907,  54  Am.  Rep.  840.  Co.,  4  Com.  B.   G3 ;    Great  Western  R. 

See  note  24  for  other  cases.  Co.  v.  Sutton,  4  H.  L.  Cas.  239;  John- 

"  Hays  V.  Pennsylvania  Co.,   12  Fed.  son  v.   Pensacola,   etc.,  R.   Co.,  24  La. 

309;    Scofield   v.    Lake    Shore,   etc.,    R.  Ann.    1;    Fitzbury   R.   Co.   v.   Gage.    12 

Co.,  43   Ohio  St.  571,  3  N.  E.  907,  54  Gray  393;    Sargent  v.   Boston,  etc..  R. 

Am.  Rep.  8-4G;   London,  etc.,  R.  Co.  v.  Co..  115  Mass.  222;  Ragen  v.  Aiken.  9 

Evershcd,  L.     R.  3     App.   Cas.      1029:  Lea.   609,   42   Am.   Rep.   684;    Monacho 

West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  v.  Ward,  27   Fed.   529. 

Neb.  326,  48  Am.  St.  Rop.  729,  62   X.  -'Johnson  v.   Pensacola,  etc.,  R.   Co.. 

W.  506,  27  L.  R.  A.  622.  l(i  Fla.  623,  26  Am.  Rep.  731. 


234  TELEGRAPH   AXD  TELEPHONE   COMPANIES.  [<§    242 

dollar  or  to  the  extent  of  one  thousand  dollars,  the  difference  in  rates 
was  disproportionate  to  the  difference  in  conditions  ?  It  may  be  said 
that  it  would  he  difficult  to  produce  evidence  to  show  to  what  extent 
such  differences  in  conditions  reasonably  affect  rates.  This  may  be 
true,  but  the  answer  is  that  whatever  may  be  the  difficulties  of  the 
proof,  a  verdict  must  be  based  upon  the  proof,  and  a  verdict  must  be 
founded  upon  evidence  and  not  upon  the  conjecture  of  the  jury  or  its 
general  judgment  as  to  what  is  fair  without  evidence  whereon  to 
found  such  judgment."  ^^ 

§  243.     Telephone  companies — furnish  equal  facilities. 

Having  considered  the  duty  of  telegraph  companies  to  furnish 
equal  facilities  to  all  impartially,  Ave  shall  now  discuss  the  same  du- 
ties which  telephone  companies  must  observe.  It  must  be  understood, 
however,  that  there  are  no  material  differences  between  the  two  com- 
panies with  respect  to  this  duty.  As  was  said  heretofore,  there  may 
be  some  very  slight  differences  touching  this  subject,  arising  from 
the  fact  that  they  are  differently  manipulated.  Under  the  common 
law,  telephone  companies  were  not  in  every  particular  common  car- 
riers, in  that  they  were  not  insurers  of  a  correct  transmission  of  mes- 
sages, but  were  liable  only  for  injuries  caused  by  their  negligence ; 
and  while  they  were  not  common  carriers  in  this  respect,  they  were 
nevertheless  under  the  same  obligations  to  the  public  as  common  car- 
riers to  act  impartially  with  all  who  applied  to  them,  offering  to 
comply  with  all  their  reasonable  regulations.  They  have  been  made 
common  carriers  by  statute  in  most  of  the  states,  but  it  was  not  nec- 
essary in  order  to  impose  on  them  the  duty  of  serving  the  public  im- 
partially to  enact  such  laws,  as  they  were  under  the  same  obligation 
by  common  law.  There  is  no  difference  between  telegraph  and  tele- 
phone companies  in  this  respect,  and  what  has  heretofore  been  said 
in  regard  to  the  duty  of  telegraph  companies  will  apply  to  telephone 
companies.  For  instance,  they  both  must  furnish  equal  facilities  to 
their  patrons,  transmit  the  messages  in  the  order  in  which  they  are 
received,  and  not  unjustly  discriminate  in  the  rates. 

''"West.  U.  Tel.  Co.  v.  Call  Pub.  Co..  44  Neb.  32G,  G2  N.  W.  506,  27  L.  E.  A. 
622,  48  Am.  St.  Rep.  729. 


^    244]  EQUAL   FACILITIES   TO   ALL.  -'J^ 

§  244.     Same  continued— whether    private    or    incorporated    con- 


cerns. 


In  some  instances,  telephone  lines  are  constructed  and  owned  by 
private  unincorporated  companies ;  the  question  then  arises,  Are  they 
under  the  same  obligation  to  furnish  equal  facilities  to,  and  act  im- 
partially with,  all  who  apply  to  thcui  ?     They  unquestionably  are." 
As  was  said :     "It  is  the  nature  of  the  service  undertaken  to  be  per- 
formed that  creates  the  duty  to  the  public,  and  in  which  the  public 
has  an  interest,  and  not  simply  the  body  that  may  be  invested  with 
power."  ^-     A  man  may  use  his  money  in  any  legal  business  he  may 
see  fit,  and  so  long  as  it  is  not  investc^d  in  an  enterprise  in  which  the 
public  may  have  an  interest,  he  will  have  exclusive  control  over  same, 
or  rather  over  the  enterprise ;  but  so  soon  as  the  money  is  invested  in 
a  business  in  which  the  public  has  aii  interest,  the  business  must  be, 
and  is,  under  the  control  of  the  government  to  that  extent.^^     These 
companies,  whether  owned  by  private  individuals  or  by  incorporated 
companies,  necessarily  exercises  in  the  construction  of  their  lines  the 
power  of  eminent  domain.     They,  then,  are  assuming  public  func- 
tions, and  are  therefore  public  servants  to  be  controlled  by  the  pub- 
lic as  such.     One  of  the  duties  imposed  on  all  public  servants,  or  en- 
terprises of  a  public  nature,  is  that  they  are  bound  to  supply  all  alike 
who  are  in  like  circumstances  with  similar  facilities,  under  reason- 
able limitations,  for  the  transmission  of  news  without  any  discrimi- 
nation whatsoever  in  favor  of  or  against  anyone.^"*     This  question 
was  settled  in  the  case  of  Munn  v.  Illinois,^^  and  has  been  adopted 
by  nearly  all  the  courts  of  the  Union.     In  this  case,  Mimn  and  his 
partner,  Scott,  invested  their  money  in  a  gi'ain  elevator,  built  in  the 
city  of  Chicago  and  strictly  for  a  private  enterprise,  but  the  elevator 
was  nevertheless  being  used  by  the  public    generally.      :M^mn    and 
Scott  attem])ted  to  evade  a  statute  which  imposed  a  license  tax  on  all 
concerns  of  this  nature,  on  the  gTOund  that  the  business  was  private 
and  could  not  therefore  be  taxed.     Chief  Justice  Waite,  in  delivering 

"  State  V.  Nebraska  Tel.  Co..  17  Neb.  n.ovo.  etc..  Tel.  Co..  Of,  Md.  300.  50  Am. 

126,  52  Am.  Rep.  404.  Hep.  167. 

»» Chesapeake,   etc.,  Tel.    Co.   v.   Bal-  "State   v.    Citizens'   Tel.    Co.,    61    S. 

timore,  etc.,  Tel.  Co.,  66  Md.  399,  59  Car.  83.  39  S.  E.  257,  85  Am.  St.  Rep. 

Am.  Rep.   167.  S"0.  55  L.  R.  A.  139. 

»» Chesapeake,  etc..  Tel.   Co.  v.  Balti-  « :Miimi  v.  Illinois.  94  U.  S.   113. 


236  TELEGKAPH  AXD   TELEPHONE   C0:MPAXIES.  [<§,    24-t 

the  opinion  of  the  court,  said:  ""Looking,  then,  to  the  common  law, 
from  whence  came  the  right  which  the  constitution  protects,  we  find 
that,  when  private  propertv  is  affected  with  public  interest,  it  ceases 
to  be  juris  privati  only.  This  was  said  by  Lord  Chief  Justice  Hale 
more  than  two  hundred  years  ago  in  his  treatise  De  Portibus  Moris^ 
and  has  been  accepted  without  objection  as  an  essential  element  in 
the  law  of  property  ever  since.  Property  does  become  clothed  with 
a  public  interest  when  used  in  a  manner  to  make  it  of  public  con- 
venience, and  affects  the  community  at  large.  When,  therefore,  one 
devotes  his  property  to  a  use  in  which  the  public  has  an  interest,  he^ 
in  effect,  grants  to  the  public  an  interest  in  that  use,  and  must  sub- 
mit to  be  controlled  by  the  public,  for  the  common  good,  to  the  ex- 
tent of  the  interest  he  has  thus  created."  ^° 

§  245.     Statutes — declaratory  of  common  law. 

There  are  statutes  in  many  of  the  states  imposing  upon  telephone 
companies  the  duty  to  furnish  equal  facilities  impartially  to  all  who 
apply  to  them,  offering  to  comply  with  all  of  their  reasonable  regula- 
tions, but  it  has  been  held  that  these  statutes  were  only  declaratory 
of  the  common  law  on  the  subject."^'  These  obligations  are  imposed 
by  the  demands  of  commerce  and  trade,  and  it  would  be  idle  to  say 
they  existed  only  by  force  of  these  statutes.^^  Thus,  when  a  stat- 
ute imposes  a  penalty  on  any  company  which  refuses  to  receive  a  mes- 
sage for  transmission  over  its  wires  from  an  individual  or  another 
company,  the  company,  in  the  absence  of  such  statute,  could  be  forced 
by  a  writ  of  mandamus  to  perform  such  duty.  It  is  an  obligation 
which  a  company  cannot  avoid  by  reason  of  the  fact  that  there  are  no 
penal  statittes  to  that  effect. '^^ 

§  246.     Must  furnish  equal  service  and  facilities. 

These  companies  must  not  only  furnish  services  and  facilities  to 
their  subscribers,  but  they  must  furnish  like  services  to  all,  on  like 

^M.  State  V.  Bell  Tel.  Co..  36  Ohio  St.  296. 

=■  Central  U.  Tel.  Co.  v.  Fehring,  146  38  Am.  Eep.  584. 
Ind.  189,  45  N.  E.  64;  State  v.  Nebras-  '«  State  v.  Nebraska  Tel.  Co.,  17  Neb. 

ka  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  126,  22  N.  W.  237,  52  Am.  Rep.  404. 
52    Am.    Rep.    409;    State    v.    Citizens'  ■"Central  U.   Tel.   Co.  v.  Falley,   118 

Tel.   Co.,  61   S.  Car.   83,  39  S.  E.  257,  Ind.   194     10  Am.   St.   Rep.   114,   19  N. 

55  L.  R.  A.  139,  85  Am.  St.  Rep.  870;  K.  604 


^  246] 


EQIAL    FACILITIKS    To   AJ-I.. 


237 


terms.'*"  Tliu?,  liie\-  uiu.-i  I'unii.-^li  c\'erv  person,  who  requests  it, 
with  a  separate  telephone  and  with  telephonic  communications  an* I 
connections,''^  and  with  the  kind  of  receiver  which  he  may  desire  and 
the  best  the  eonipanv  can  afford.  He  may  demand  that  his  "calls" 
at  the  exchaniie  bo  ])roperly  attended  to  in  the  regular  order  in  which 
they  are  made;  that  all  calls  made  for  liiiii  be  promptly  and  properly 
looked  after;  and,  above  all  things,  it  is  the  duty  of  these  companies 
to  treat  all  of  their  subscrilx-rs  and  patrons  with  the  greatest  courtesy 
and  respect,  and  i<i  uticiid  to  all  business  which  they  may  request 
respecting  the  services  toward  them  as  subscribers.  It  is  also  the 
duty  of  these  companies  to  furnish  their  subscribers  with  all  the 
neeessarv  instruments  and  conveniences  to  be  had.  Thus,  they  must 
fiiniish  ilicir  subscribers  with  directories  in  which  ai'c  their  names 
and  iiuuibcrs  properly  arranged. ■*- 


"Centnil  V.  Tel.  Co.  v.  Falloy.  US 
Ind.  194,  1!)  X.  E.  604,  10  Am.  St.  Hep. 
114;  Coninieicial  U.  Tel.  Co.  v.  New 
England  Td..  etc..  Co.,  01  Vt.  241.  17 
Atl.  1071.  1.')  Am.  St.  Rep.  S9.3.  5  L. 
R.  A.  101  n:  Kirliy  v.  West.  U.  Tel. 
Co.,  4  S.  Dak.  10.-).  -if)  X.  \V.  759,  30 
h.  R.  A.  G12.  40  Am.  St.  Rep.  765: 
Lea  veil  v.  West.  L'.  Tel.  Co..  116  X. 
Car.  211.  -21  S.  E.  3!tl.  47  Am.  St.  Rep. 
798,  27  L.  R.  A.  S43 :  West.  U.  Tel.  Co. 
v.  Henderson.  89  Ala.  510,  7  So.  419. 
18  Am.  St.  Rep.  148:  Reed  v.  West.  U. 
Tel.  Co.,  135  Mo.  601.  58  Am.  St.  Rep. 
009,  34  L.  R.  A.  492:  West.  U.  Tel. 
Co.  v.  Vxn  (leave.  107  Ky.  464,  54  S. 
W.  827.  •.>2  Am.  Si.  Rep.  366;  Gwynn 
V.  Citizens'  Tel.  Co..  09  S.  Car.  434.  48 
S.  E.  400.  104  Am.  St.  Rep.  819,  07 
L.  R.  A.  111. 

"Central  I'.  Tel.  Co.  v.  Falley.  lis 
Ind.  1!U.  I'.i  X.  E.  004,  10  Am.  St. 
Rep.    114. 

*=In  State  v.  Xehiaska  Tel.  Co..  17 
Xeb.  120.  22  X.  W.  237.  2  Am.  K.p. 
409.  it  ajipcared  that  the  relator,  an 
attorney  at  hiw.  applied  to  the  loeal 
eompany  lor  a  telephone  with  the  usu- 
4il    eonneotions.      Tin-    in^tiiiment    wa~ 


tuiiii-hcd,  together  witli  all  the  appli- 
ances, excepting  a  directory,  tlie  ab- 
sence of  which  materially  impaired  the 
beneficial  use  of  the  telephone.  After 
continued  applications,  a  directory  was 
furnished,  but  on  pay  day,  the  sub- 
scriber refused  to  pay  except  for  the 
time  dining  which  he  had  been  fur- 
nished with  a  directory;  the  company 
insisted  .ii  full  payment.  Xeither 
^^•ould  yield,  so  the  company  removed 
the  instrument.  Subsequently  the  re- 
lator applied  for  services,  oflering  to 
comply  with  their  reasonable  regula- 
tions, but  was  refused.  He  then  aji- 
plied  for  mandamus  to  compel  the  com- 
pany to  render  the  service.  It  wa- 
held  that  the  mandamus  should  issue. 
Tlic  coin'.,  after  reviewing  the  status 
of  the  telephone  company  and  the  pub- 
lie  character  of  the  obligations  they 
assumed,  concluded  that  the  company 
had  '"assumed  the  responsibility  of  a 
(uiiiir.on  c.irricr  of  news.  Its  wires  and 
polo  line  our  jniblic  streets  and  thor- 
ougiifarc-.  it  has,  and  must  be  hel  1 
to  have,  taken  its  place  by  the  side  of 
tlie  telegraph  as  such  common  car- 
rier."     That     the    dutv    to   tlie   relator 


238  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<^    247 

§  247.     Same  continued — terms. 

The  iiile  respecting  discrimination  of  rates  of  telegraph  companies 
is  applicable  to  telephone  companies.  That  is,  telephone  companies 
must  have  a  uniform  rate  for  all  subscribers  and  patrons,  where  the 
conditions  are  the  same.  The  rates  to  be  charged  to  all  who  use  long 
distance  telephones,  or  to  be  charged  to  their  regular  subscribers,  are 
generally  regulated  by  statutes.  It  has  been  held,  therefore,  that 
where  statutes  prescribe  the  maximum  charges  for  telephone  instru- 
ments and  services,  it  is  not  the  taking  of  private  property  for  pub- 
lic use;  nor  do  they  in  anywise  interfere  with  the  constitutional 
rights  of  citizens  in  private  property  f^  nor  are  they  an  interference 
with  interstate  commerce.^*  And  where  these  statutes  prescribe  a 
penalty  for  a  violation  of  this  duty,  this  is  only  cumulative;  and 
the  company  cannot  be  forced  to  comply  with  its  requirements  by 
mandamus.^  ^  As  there  are  cases  where  telegraph  companies  may 
discriminate  in  their  rates,  so,  also,  there  may  be  conditions,  sur- 
rounding the  particular  case,  which  will  entitle  telephone  companies 
to  make  like  discriminations.  For  instance,  if  the  expenses  and  trou- 
ble are  greater  in  one  particular  message  than  in  another,  different 
charges  may  be  made.  Thus,  they  may  make  a  greater  charge  to  a 
subscriber  who  has  a  single  line  than  to  one  who  is  on  a  double  line ; 
and  they  may  charge  a  country  subscriber  more  than  one  living  near 
the  exchange.  While  this  is  not  the  general  practice,  there  seems  to 
be  no  reason  why  the  same  could  not  be  done,  as  it  is  necessarily  more 
expensive  and  troublesome  to  keep  this  line  in  repair  than  one  within 
the  corporate  limits  and  near  the  exchange.     They  may  also  discrim- 

was   one   growing   out    of   its   office    as  obligation  by  alleging  that  it  does  not 

carrier  and  not   out   of   contract;    and  rent  telephones,  but  furnishes  such  ser- 

that  its  lelations  with  the  relator  as  to  vice  by  means  of  public  stations  only, 

the     misunderstanding    between    them  Central  U.  Tel.  Co.  v.  State,  123  Ind. 

concerning  the  directory,  could  not  af-  113,  24  N.  E.  215;  Central  U.  Tel.  Co. 

feet  the  case.     See,  also,  Delaware  v.  v.  State,  118  Ind.  194,  19  N.  E.  604,  10 

Delaware,  etc.,  Tel.,  etc.,  Co.,  47   Fed.  Am.  St.  Rep.  114. 

633,  affirmed  50  Fed.  677;   Central  U.  "Hockett  v.  State,  105  Ind.  250,  55 

Tel.  Co.  V.  Bradbury,  106  Ind.  1;  Budd  Am.  Rep.  201. 

V.  New  York,  143  U.  S.  517,  12  S.  Ct.  **  Central  U.  Tel.  Co.  v.  Falley,  118 

Rep.  468;   People     v.  Manhattan     Gas  Ind.    194,    19    N.    E.    604,    10    Am.    St. 

Light  Co.,  45  Barb.   (N.  Y.)    136.     The  Rep.  114. 

telephone   company    cannot   evade   this  *''  Id. 


<§    248]  EQUAL  FACILITIES  TO   ALL.  239 

mate  between  day  and  night  patrons  for  the  same  reasons  as  those 
given  in  regard  to  telegraph  companies.  They  cannot  discriminate 
between  county  subscribers;  but  if  a  subscriber  in  one  county  desires 
to  talk  to  a  subscriber  in  another  county,  they  may  charge  extra  for 
such  messages;  yet  this  charge  must  be  the  same  as  that  imposed  on  a 
non-subscriber  for  the  same  kind  of  message;  furthermore,  the 
charges  must  be  the  same  between  subscribers  and  non-subscriljers,  in 
the  same  county,  where  the  conversation  is  between  a  subscriber  and 
a  non-subscriber.  In  other  words,  where  conversations  are  carried 
on  between  two  citizens  of  a  county,  where  one  is  a  non-subscriber, 
the  charges  must  be  the  same  as  those  imposed  on  all  other  non-sub- 
scribers. There  may  be  this  apparent  exception,  however,  when  the 
addressee  is  a  subscriber;  the  company  would  not  be  allowed  to  make 
an  extra  charge  for  the  purpose  of  getting  him  to  the  telephone  as  it 
would  in  case  he  were  a  non-subscriber,  and  that,  too,  whether  he  was 
or  was  not  a  nonresident.  Of  course,  it  is  not  understood  by  this 
that  the  companies  should  make  diligent  search  for  the  party  called. 
Telephone  companies  cannot  discriminate  in  favor  of  their  employees 
and  against  the  subscribers  or  patrons;  neither  can  they  grant  any 
privilege  in  the  way  of  free  rates  to  any  of  their  employees,  not  en- 
joyed by  the  public,  unless  the  same  is  pertaining  to  business  of  the 
company.  Neither  can  they  discriminate  in  favor  of  a  subscriber 
who  does  exclusive  or  any  extra  amount  of  business  with  them.  They 
must  serve  all  equally  and  impartially,  whatsoever  may  be  the  na- 
ture of  business  or  whomsoever  they  may  be. 

§  248.     Whom  to  serve — persons  conducting  legitimate  business. 

It  is  the  duty  of  telephone  companies  to  furnish  equal  facilities 
and  conveniences,  impartially  to  all,  irrespective  of  age,  race  or 
habits ;  and  serve  all  these  alike  on  offering  to  comply  with  their 
reasonable  regulations.  While  it  seems  that  they  cannot  be  forced 
to  furnish  their  instruments  to  persons  for  the  purpose  of  using  them 
for  an  illegitimate  business,  yet  there  is  no  reason  why  they  may  not 
be  compelled  to  furnish  their  facilities  to  parties  who  carry  on  an 
illegitimate  business,  otherwise  than  by  the  operation  or  use  of  the 
company.  In  other  words,  telegraph  and  telephone  companies  can- 
not be  compelled  by  mandanuis  to  furnish  their  facilities  to  a  "bucket 


240  TELEGRAPH  AND  TELEPHOXE   COMPANIES.  [§    248 

shop-'  for  the  purpose  of  obtaining  the  market  quotations,-*^  or  to 
persons  otherwise  using  them  as  a  means  of  consummating  wager- 
ing contracts;  yet  it  is  their  duty  to  furnish  tliese  people,  at  their 
place  of  business  not  used  for  such  purposes,  with  all  the  facilities 
and  conveniences  furnished  other  persons,  and  on  the  same  terms, 
where  the  same  is  being  used  for  all  conveniences  otherwise  than  such 
as  may  pertain  to  their  gambling  transactions.  Furthermore,  should 
they  see  fit  to  furnish  their  telephones  and  connections  to  such  per- 
sons for  the  express  purpose  of  carrying  out  their  illegal  or  gambling 
contracts,  yet  they  could  not  be  forced  to  furnish  their  facilities  for 
such  purposes  to  other  like  persons ;  because,  as  they  could  not  b»: 
compelled  to  furnish  their  facilities  to  any  person  for  the  purpose  of 
carrying  on  a  business  which  is  not  under  the  protection  of  the  laws, 
they  could  not  be  compelled  to  furnish  to  others  conducting  a  simi- 
lar business,  likewise  unprotected.  Among  such,  who  should  claim 
to  be  discriminated  against  in  this  respect,  there  would  be  no  ground 
in  law  or  equity  on  which  to  base  and  contend  for  the  right ;  there 
is  no  principle  within  the  far-reaching  vision  of  jurisprudence  so 
powerful  as  to  compel  any  one  to  carry  on  an  illegitimate  business, 
or  to  assist  in  lending  a  helping  hand  to  another  for  the  purpose  of 
doing  the  same.  So,  as  the  law  will  not  compel  these  companies  to 
furnish  their  facilities  to  one  person  for  an  illegitimate  purpose,  it 
stirely  wall  not  compel  them  to  furnish  one  for  this  kind  of  a  busi- 
ness when  the  company  voluntarily  extends  its  services  to  another 
for  like  ])urposes. 

§  249.     Same  continued — other  corporations. 

These  companies  may  elect  as  to  whether  they  wnll  receive  from 
and  deliver  messages  to  telegraph  companies;  but  if  they  tender  their 
services  to  one  of  these  companies,  they  are  bound  to  receive  dis- 
patches from  and  for  all  telegraph  companies  in  the  usual  course  of 
Imsiness.^'  As  was  very  al)ly  ol)served  by  Judge  Butler  on  this  sub- 
ject:     '"Wliile  siu'li  coiiipiinics  ;ire  not  required  to  extend  their  facil- 

*"  Bryant   v.    West.    l'.    Tel.    Co..      17  niovo.  etc..  Tel.  Co..  60  Md.  .390.  7  Atl. 

Fed.  82.5;   Metropolitan  (Jniin  &  Stock  800.  .jO    Vm.  Rep.  167;  Missouri  ex  rel. 

Excli.   V.    Chicago   Board   of   Trade,    M  ^•.    T'.dl    Tel.   Co..   8   Am.   &   Eng.   Corp. 

Fed.   847.  (as.     7;     Delaware,     etc..     Tel.     Co.  v. 

*"  Chesapeake,  etc..  Tel.  Co.   v.   P.alti-  State.  50  Fed.  077. 


^  250] 


EQUAL   FACILITIES   TO   ALL. 


241 


ities  beyond  .such  reasonable  limits  as  they  may  prescribe  for  them- 
selves, they  cannot  discriminate  between  individuals  or  classes  which 
they  undertake  to  serve.  As  common  carriers  of  merchandise  may 
prescribe  the  points  between  which  they  will  carry  and  the  descrip- 
tion of  goods  they  will  accept,  so,  doubtless,  may  carriers  of  mes- 
sages limit  their  business  and  obligations.  If,  therefore,  the  respond- 
ent had  confined  the  use  of  its  telephonic  facilities  to  the  carriage 
of  personal  messages  for  individuals,  excluding  those  of  telegraph 
companies  and  others  who  forward  messenger  hire,  the  relator  would, 
probably,  have  no  just  ground  of  complaint."  ^^ 

§  250.     When  may  refuse  to  furnish  services — abusive  language. 

Under  certain  conditions  and  circumstances,  telephone  companies 
may  refuse  to  furnish  their  telephonic  instruments  and  services  to 
certain  persons.  As  mentioned  in  the  preceding  section,  they  may 
refuse  to  furnish  them  to  persons  who  intend  to  use  them  for  illegit- 
imate purposes.^^  And  while  these  companies  must  deal  fairly  with 
their  patrons  and  extend  to  them  all  the  courtesy  and  respect  which 


«  Drue.  etc..  T.'l.  Co.  v.  State,  50  Fed. 
677. 

*•  Mandamus  does  not  lie  to  compel 
a  telephone  company  to  place  a  tele- 
phone in  a  bawdy-house:  Godwin 
Tel.  Co.,  136  N.  Car.'  258,  48  S.  E.  636, 
67  L.  R.  A.  251,  103  Am.  St.  Rep.  941. 
The  court  in  this  case,  said  "It  is  ar- 
gued that  a  common  carrier  would  not 
be  authorized  to  refuse  to  convey  the 
plaintiff  because  she  keeps  a  bawdy- 
house.  Nor  is  the  defendant  refusing 
her  a  telephone  on  that  ground,  but  be- 
cause she  wishes  to  place  the  telephone 
in  a  bawdy-house.  A  common  carrier 
could  not  be  comix?lled  to  haul  a  car 
used  for  such  purpose.  If  the  plain- 
tiff wished  to  have  the  telephone  placed 
in  some  other  house  used  by  her,  or 
even  in  a  house  where  she  resided,  but 
not  kept  as  a  bawdy-house,  she  would 
not  be  tlebarred  tecause  she  kept  an- 
other house  for  such  unla\vful  and  dis- 
leputable  purpose.  It  is  not  her  char- 
T.  &  T.— 16 


actor,  but  the  character  of  the  business 
at  the  house  where  it  is  sought  to  have 
the  telephone  placed  which  required 
the  court  to  refuse  the  mandamus.  In 
like  manner,  if  a  common  carrier  knew 
til  at  passage  was  sought  by  persons 
who  are  traveling  for  the  execution  of 
an  indictable  offense,  or  a  telegraph 
company  that  a  message  was  tendered 
for  a  liko  purpose,  both  would  be  jus- 
tifiable in  lefnsing,  and  certainly  when 
the  plaintiff  admits  that  she  is  carry- 
ing on  a  criminal  business  in  the  house 
^^here  she  seeks  to  have  the  telephone 
placed,  the  court  will  not  by  its  man- 
damus rciiuire  that  facilities  of  a  pub- 
lic nature  be  furnished  to  a  house  used 
for  that  business.  For  like  reason  a 
mandamus  will  not  lie  to  comiiel  a  wa- 
ter company  to  furnish  water,  or  a 
light  company  to  supply  light  to  a 
house  used  for  carrying  on  an  illegal 
business.  The  courts  will  enjoin  or 
abate,  not  aid,  a  public  nuisance." 


242  TELEGRAPH  A^'D  TELEPHONE  COMPANIES.        [§  250 

is  due  one  person  toward  another  in  like  circumstances  yet,  on  the 
other  hand,  thej  should  likewise  receive  the  same  treatment  by  all 
who  desire  to  do  business  with  them.  So,  if  anyone  applying  to  them 
for  service  should  use  abusive  language  over  the  wires,  or  such  as 
would  tend  to  create  a  public  disturbance  either  with  any  employee 
of  the  company  or  other  person  with  whom  they  may  be  conversing, 
they  may  refuse  to  furnish  him  service  while  using  such  language. 
And  should  one  of  their  subscribers  use,  continuously,  such  language 
or  abuse  over  his  telephone,  after  persistent  requests  by  the  com- 
pany not  to  do  so,  they  may,  as  a  last  resort,  remove  their  instrument 
from  his  premises.  It  is  a  w^ell-known  principle  in  the  law  of  torts, 
that  any  publisher  of  libelous  or  slanderous  words  is  as  guilty  of  the 
wrong  as  he  who  first  used  the  words ;  so,  if  these  companies  could 
be  forced  to  render  services  to  persons  who  used  them  for  such  pur- 
poses, the  company,  and  not  the  wrongdoer  in  fact,  might  thereby 
become  liable  in  an  action  for  damages.  So  to  protect  itself  such 
company  may  refuse  services  to  such  persons. ^"^ 

§  251.     Same  continued — on  refusal  to  pay  charges  or  rent — other 
reasons. 

The  company  may  refuse  to  furnish  its  facilities  to  any  one  who 
does  not  offer  to  pay  the  proper  charges.  ^^  The  charges  of  these  com- 
panies, as  said  heretofore,  are  regulated  by  state  and  federal  laws, 
and  so  long  as  charges  remain  within  the  maximum  rates  prescribed 
by  these  authorities,  the  companies  can  enforce  a  compliance  or  re- 
fuse to  render  their  ser^'ices.  But  so  soon  as  they  exceed  these 
charges  in  any  manner,  as  by  rental  of  each  of  its  instruments;  or 
as  a  rental  for  their  instriunents  and  an  extra  charge  for  non-sub- 
scribers; or  as  a  toll-station,  or  a  charge  for  each  conversation  and  a 
rental,  they  cannot  use  this  as  an  excuse  for  not  furnishing  their  in- 
struments, provided  the  subscriber  or  patron  offers  to  pay  the  rate 
prescribed  by  law.  If  the  failure  to  pay  is  due  to  the  company's  re- 
fusal to  render  the  patron  the  services  he  is  entitled  to  demand,  it 
affords  no  ground  to  the  company  for  discriminating.^^      And  the 

•"•Pugh  V.  City,  etc.,  Tel.  Co.,  27  Alb.  Rushville  Co-operative  Co.  v.  Irvin,  27 
L.  J.  163.  Ind.  App.  62. 

"  Nebraska  Tel.  Co.  v.  State,  55  Neb.  '^^  Owensboro-Harrison     Tel.     Co.     v. 

627,  76  N.  W.   171,  45  L.  R.  A.   113;       Wisdom,  62  S.  W.  529,  23  Ky.  L.  Rep. 

97. 


§    252]  EQUAL   FACILITIKS   TU   ALL.  24u 

fact  that  an  applicant  had  violated  a  former  contract  with  the  com- 
pany is  no  ground  for  its  refusing  his  application.  Thus,  for  thr- 
reason  that  a  subscriber  refused  to  pay  his  rental,  past  due,  on  the  ac- 
count of  a  directory  not  having  been  furnished  at  the  time  by  his  re- 
quest, is  no  ground  for  the  company's  refusal  to  furnish  its  instru- 
ments later  and  at  a  different  time,  wlien  tlie  subscril^er  agrees  to 
comply  with  their  reasonable  rules.^''  The  company  may  refuse  to 
furnish  facilities  to  one  who  violates  its  reasonable  regulations  with 
regard  to  the  use  of  its  instruments,^"*  but  the  regulations  must  be 
entirely  reasonable.  For  instance  ,  a  telephone  company  cannot,  as 
a  condition  precedent  to  furnishing  an  applicant  with  telephone  fa- 
cilities, require  him  to  stipulate  that  he  will  use  the  system  of  that 
company  exclusively.^^ 

§  252.     Being  lessees  of  patents — no  excuse. 

It  has  been  vigorously  contended  in  several  cases,  that  telephone 
companies  were  not  under  obligation  to  furnish  services  to  the  entire 
public  or  to  certain  rival  companies,  where  they  were  the  lessees  of 
telephone  patent  devices;  but  with  only  one  exception, ^^  all  the 
courts  have  held  that  they  could  not  evade  this  duty  on  such  ground. 
The  manner  in  which  this  question  was  brought  about  is  as  follows: 
One  Alexander  Graham  Bell  invented  an  apparatus  for  transmitting 
articulate  speech  by  electricity,  and  the  same  was  patented  by  him 
in  1876  in  the  United  States,  by  which  the  exclusive  right  to  use  and 
license  others  to  use,  and  to  refuse  to  others  the  right  to  use  said  in- 
vention, was  vested  absolutely  in  said  Bell  and  his  assigns;  and  the 
whole  of  said  rights  of  said  Bell  were  by  him  duly  assigned  to,  and 
became  vested  in,  the  American  Bell  Telephone  Company,  a  Massa- 
chnsetts  corporation ;  and  after  the  grant  of  said  letters  patent  to 

=« State  V.  Nebraska  Tel.  Co.,  17  Neb.  "State   v.   Citizt-ns'   TeL   Co..   61    S. 

126,  22  N.  W.  237,  52  Am.  Rep.  409;  Car.  83,  r.9  S.  E.  257,  85  Am.  St.  Rep. 

State  V.  Kinloch  Tel.  Co.,  93  Mo.  App.  870,  55  L.  E.  A.   139;  Gw-ynn  v.  Citi- 

349;   State  v.  Citizens'  Tel.  Co.,  61   S.  zens'  Tel.  Co.,  69  S.  Car.  434.  48  S.  E. 

Car.  83,  39  S.  E.  257,  85  Am.  St.  Rep.  4(i0.  104  Am.  St.  }\<?]).  819.  67  L.  R.  A. 

870,  55  L.  R.  A.  139.  111. 

"People   V.   H-udson   River  Tel.    Co.,  "^American,  etc.,  Tel.  Co.  v.  Connec- 

19  Abb.  N.  Cas.   (N.  Y.)  466;  Gardner  ticut  Tel.  Co.,  49  Conn.  352. 
V.  Providence  Tel.  Co..  23  R.  I.  262. 


244  TELEGRAPH   AND  TELEPHONE   COMPANIES.  [§    2.52 

Bell,  other  inventors  made  varions  improvements  in  his  apparatus, 
to  be  used  therewith,  and  all  of  which  have  been  assigned  to  the  said 
company."'  But  before  these  last  patent  devices  were  assigned  to 
said  company,  a  controversy  arose  as  to  who  were  the  real  inventors 
of  said  devices ;  the  result  of  said  controversy  was  the  assigTiment  of 
all  said  devices  to  this  company,  by  which  there  were  certain  exclu- 
sive privileges  to  be  enjoyed  by  the  assignors, ^^  Later,  the  Ameri- 
can Bell  Telephone  Company,  assignee  of  all  these  patented  devices, 
leased  these  apparatuses  to  other  companies,  under  the  condition  that 
the  latter  companies  w^ould  not  furnish  services  to  certain  rival  com- 
panies of  lessors.  These  rival  companies,  after  having  been  refused 
by  these  lessees  to  furnish  them  with  telephone  connections  and  ser- 
vices, applied  to  the  courts  to  issue  a  mandate  to  force  and  compel 
such  services ;  and  the  same  w^as  aranted  on  the  oTOund  that  the  con- 
dition  under  which  the  lease  was  made,  with  respect  to  the  uses  to 
which  these  devices  could  be  put,  was  void. 

§  253.     Lessee's  ground  for  refusal. 

It  has  been  strongly  urged  by  the  lessees  of  these  patented  devices, 
that  by  reason  of  the  fact  that  the  American  Bell  Telephone  Com- 
pany, being  the  absolute  and  exclusive  owner  of  such  patents;  hav- 
ing acquired  the  right  to  vend,  sell  and  use  them  in  any  manno" 
which  it  might  see  proper;  and,  having  leased,  under  such  author- 
ity its  patents  to  them,  could  use  them  only  for  such  purposes  as  Ave  re 
prescribed  in  the  lease.  In  other  words,  the  American  Bell  Tele- 
phone Company  was  the  absolute  and  exclusive  owner  of  these  de- 
vices; that  'it  had  the  right,  in  granting  any  license  to  use  these  ai)- 
paratuses,  to  limit  such  use  by  any  condition  which  it  saw  proper  to 
impose  upon  the  licensee;  and  that  the  licensee  acquired  but  a  lim- 
ited right,  and  could  impart  no  greater  right  to  any  subscriber  than 
that  possessed  by  the  licensee  itself. ^^  It  is  true  that  this  company 
has  acquired,  through  Bell  the  inventor,  the  absolute  ownership  of 
these  devices;  that  it  is  protected  under  its  patent,  in  the  vending 
and  selling  of  the  patent  itself;  and  it  may  lease  these  to  any  person 

"•Id.  Co.,   Gl   VI.   241.    17   Atl.    1071.    15  Am. 

'■"Tele^jrapli   Co.     v.  Telephone,     ete..       St.  Rep.  SU.S.  ;">   L.  K.  A.   Kiln. 

•''«  Id. 


^    254]  EQUAL   FACILITIES   TO   ALL.  245 

or  corpuratiuii  it  may  see  proper,  or  may  refuse  to  make  or  use  or  al- 
low anyone  else  to  make  or  use  them;  but  as  soon  as  the  right  of  the 
property,  in  its  physical  substance,  is  j)laced  out  to  any  one  for  public 
use,  it  then  loses  the  control  over  its  use,"*'  The  owner  may  lease 
the  devices  for  private  purposes  and  restrict  its  uses ;  but  so  soou 
as  it  is  leased  for  a  public  use,*^^  the  public  then  acquires  an  interest 
in  the  property  in  its  physical  nature.  It  is  then  subject  to  the  pub- 
lic control  as  any  other  property  so  used;  and  no  discrimination  with 
respect  to  that  use  can  be  exercised.  It  must  be  borne  in  mind  that 
the  right  of  property  in  the  physical  substance,  which  is  the  fruit  of 
the  discovery,  is  altogether  distinct  from  the  right  in  the  discovery 
itself."-  Therefore,  as  soon  as  the  owner  of  these  patented  devices 
leases  them  to  be  used  by  another  company,  he  may  restrict  the  lessee 
with  i-cspect  to  the  making,  selling  or  leasing  of  such  instruments  or 
devices;  but  he  loses  control  over  the  property  with  respect  to  the 
uses  to  Avhicli  it  may  be  put. 

§  254.     Remedies — mandamus. 

The  duty  which  the  telephone  company  owes  the  public,  being  es- 
tablished in  any  case,  mandamus  is  the  proper  remedy  to  enforce  such 
performance.  They  are  not  under  obligation  to  the  public,  in  every 
particular,  as  common  carriers,  in  that  they  arc  not  insurers  of  'cor- 
rect transmission  of  messages;  yet  their  duties  tow^ard  the  govern- 
ment, with  respect  to  acting  impartially  toward  all  who  apply  to 
them,  offering  compliance  with  their  reasonable  regulations,  are  the 
same  as  common  carriers.  While  the  government  will  not  interfere 
with  the  internal  management  of  these  companies,  unless  necessity 
demands  it  to  do  so,  yet  having  an  interest  in  the  concern  to  the  ex- 
tent of  seeing  that  their  acts  toward  the  ]mblic  are  impartial  it  may 
regulate  the  external  management  of  the  company  to  that  extent ;  and 
the  proper  proceeding  in  all  cases  of  this  kind  is  by  a  writ  of  man- 
damus."'^    But  if,  after  the  writ  has  been  issued,  there  is  any  show- 

00  J  (I  "'-Tclofrrnph   Co.     v.  Telephone,     etc.. 

•"Connell   v.   West.   U.   Tel.   Co..    IIG  Co..  01    Vt.  241,   I.t  Am.  St.  Rep.  893. 

Mo.   34,  20  L.   R.   A.    172.   38   Am.   St.  .i  L.  R.  A.   161n,  17  Atl.   1071. 

Rep.   575;   Telemaph  Co.  v.  Telephone.  <°  Owensboro-Harrison     Tel.     Co.     \. 

etc.,  Co..  Gl   Vt.   241,   17   Atl.    1071.   I.t  Wisdom.  (12  S.  W.  520.  23  Ky.  L.  Rep. 

Am.  St.  Rep.  803,  5  L.  R.  A.   ICln.  07:     .Mahon    v.    IMich.    Tel.    Co..    03    N. 


246  TELEGKAPH  AND   TELEPHOXE   COMPANIES.  [§    254 

iug  that  the  company  has  not  had  the  time  to  make  the  arrangements 
in  supplying  the  facilities,  and  that  they  will  be  furnished  within  a 
reasonable  time,  the  writ  should  be  stayed  until  proper  time  has  been 
given  the  company  to  make  such  necessary  arrangements.^^  While 
this,  in  general,  is  the  proper  step  to  pursue  in  order  to  enforce  the 
duties  of  these  companies,  it  is  also  the  proper  procedure  to  compel 
the  lessee  of  these  patented  devices  to  furnish  their  instruments  to  all 
who  apply  for  services. 

§  255.     Proper  parties. 

In  mandamus  proceedings,  brought  to  enforce  telephone  companies 
leasing  these  patented  devices,  to  furnish  telephone  facilities,  it  is 
not  necessary  to  make  the  owners  of  the  patent  defendants  in  the  case. 
The  lessee  of  the  patent  is  the  only  necessary  party  defendant.®^  The 
reason  for  holding  that  the  owner  of  the  patent  should  not  be  made 
a  party  to  the  suit  is,  that  the  conditions  of  lease  with  respect  to 
the  limitations  imposed  thereon  in  the  uses  to  which  the  tangible 
property  of  the  patent  may  be  put,  are  void ;  and,  as  the  other  part  of 
the  lease  is  binding,  the  owner  of  the  patent  has  temporarily  lost  his 
interest  in  this  property  and  cannot,  therefore,  lie  made  a  i)avty  to  a 
suit  concerning  property  in  which  he  has  no  tangible  interest.''*^ 
Wh-ile  the  owner  of  the  patent  need  not  be  made  a  party  to  the  pro- 
ceedings, yet  the  company's  defense  may  be  that  its  contract  with  the 
patent  company,  the  owner  of  the  patent,  forbids  it  to  furnish  the 
particular  service  in  dispute.®'^ 

§  256.     By  injunction. 

While  mandamus  proceedings  are  the  proper  steps  to  force  the 
owners  of  these  patented  devices  to  furnish  their  facilities  to  tele- 

W.  629;   State  v.  Kinloch  Tel.  Co.,  93  •-- Bell  Tel.  Co.  v.  Com.   (Pa.)    3  Atl. 

Mo.  App.  349;  People  v.  Central  New  825.     Compare  Commercial  U.  Tel.  Co. 

York  Tel.,  etc.,  Co.,  41  N.  Y.  App.  Div.  v.  New  England  Tel.,  etc.,  Co.,  61  Vt. 

17;    State  v.   Citizens'  Tel.  Co.,   61    S.  241,  17  Atl.  1071,  5  L.  R.  A.  161n,  15 

Car.  83,  39  S.  E.  257,  5  L.  R.  A.  139,  Am.   St.   Rep.   893.     See  also  Missouri 

85  Am.  St.  Rep.  870.  v.  Bell  Tel.  Co.,  23  Fed.  539. 

"State  V.   Citizens'   Tel.    Co.,    61    S.  «» Id. 

Car.  83,  99  S.  E.  257,  85  Am.  St.  Rep.  «'  Id. 
870,  55  L.  R.  A.  139. 


<^    25G  EQUAL    FACILITIES   TO    ALL,  247 

plionc  companies  wLcre  the  same  have  never  been  furnished,  yet 
should  these  companies  be  already  supplied  with  these  facilities  and 
about  to  be  deprived  of  them,  a  writ  of  injunction  would  be  the 
proper  proccdure.^^  If  the  services  are  wrongfully  discontinued,  the 
company  would  be  entitled  to  recover  such  damages  as  were  the  direct 
result  of  the  wrong  ;*^^  and  the  measure  of  damages  in  such  case, 
where  there  is  no  willful  wrong  and  the  discontinuance  is  due  to  an 
honest  mistake  on  the  lessee's  part  and  no  special  damages  are  shown, 
is  the  price  of  the  service  during  the  time  it  was  discontinued,  cal- 
culated on  the  basis  of  the  regular  monthly  charge.''^  Special  dam- 
ages arc  also  recoverable  when  proven.'^ 

•^Louisville   Transfer   Co.   v.    Ameri-  Sterne   v.    Metropolitan    Tel.    etc.,    Co., 

can  Dist.  Tel.  Co.   (Ky.),  24  Alb.  L.  G.  33  N.  Y.  App.  Div.  ItiO. 

283.     See  also  Central  Di.st.,  etc.,  Tel.  ""'Malocliee  v.  Great    Southern    Tel., 

Co.  V.  Com.,  114  Pa.  St.  592,  7  Atl.  920.  etc.,  Co.,  49  La.  Ann.  1690,  22  So.  922. 

Where,  pending  the  injunction  suit,  the  ™  Cumberland,  etc.,  Tel.  Co.  v.  Hen- 

telephono   company   sold   and   transfer-  don,  71  S.  W.  435,  24  Ky.  L.  Rep.  1271. 

red  its  property  and  rights  to  another,  "  Ovvensboro-Harrison     Tel.     Co.      v. 

the   suit   cannot   be    continued    against  Wisdom,  (;2  S.  W.  529,  23  Ky.  L.  Rep. 

the  purchaser  merely  as  its  successor.  97. 


CHAPTER  XIII. 

TRANSMISSION    AND    DELIVERY    OP    MESSAGES— GENERAL 
NATURE  OF  LIABILITY. 

§  257.  Telegraph  companies. 

258.  Same  continued — opinion  on  point. 

259.  Not  liable  as  ordinary  bailees  for  hire. 

260.  Same    continued— telegraph    and     tclcplionc — liabilitii^s — dis- 

tinctions. 

261.  Same  continued — telephone. 

262.  Message  for  person — make  reasonable  search. 

263.  Same  continued — when  compensated. 

264.  Long     distance      telephone — disconnected     at     intermediate 

points. 

265.  Duty  of  telegraph    companies    to    transmit^arises    not    on 

contract  alone. 

266.  Same  continued^further  duties. 

267.  Same   continued — must    accept    proper    messages — not    im- 

proper or  such  as  would  subject  the  company  to  indictment. 

268.  Same  continued — such  as  would  subject  to  action  of  tort. 

269.  Same  continued — lines  down — other  reasons. 

270.  Must  be  properly  tendered — in  writing. 

271.  Same  continued — must  be  on   company's   blank. 

272.  Delivery  to  messenger  boy — not  delivery  to  company. 

273.  Same  continued — prepayment  of  charges  before  accepting. 

274.  Same  continued — failure  to  receive — damages — functions. 

275.  Transmit  without  delay. 

276.  Burden  of  evidence — delay — presumption. 

277.  Duty  to  inform  sender  when  delay  unavoidable. 

278.  Must  transmit  without  error. 

279.  Degree  of  care  in  transmission. 

280.  Liability  under  statutes — all  mistakes. 

281.  Same  continued — damages — actual — err.n-s  in  ( raiisniission. 

282.  Duty  to  deliver — addressee — in  general. 

283.  Excuse  for  non-delivery. 

284.  Same  continued — not  excused  for. 

285.  Duty  to  inform  sender  of  non-delivery. 

286.  To  whom  made — delivery. 

287.  Delivery  to  wife. 

288.  Delivery  to  hotel  clei'k — not  sufficient. 

28!J.  Where  two  parties  have  same  name — delivery  to  one. 

290.  In  care  of  another. 

291.  To  authorize  agent. 

292.  Manner  of  delivery — written  copy. 

293.  No  duty  to  forward  messages. 

(248) 


^    257]  AS  TO  MESSAGES LIABILITY.  249 

294.  Time  to  deliver. 

295.  Same    continued— two    messages    of    same    nature    received 

within  office  liouis. 

296.  Free  delivery  limit. 

297.  When  sendee  lives  several  miles  from  office. 

298.  Same  continued — may  waive  right. 

299.  No  delivery  limit  fixed. 

300.  Must  use  due  diligence  to  deliver. 

301.  Same  continued — illustrations. 

302.  Diligence  exercised — evidence — burden  of  proof. 

303.  Failure  to  designate  with  accurateness  the  address. 

304.  Penalty  imposed  for  failure  to  deliver. 

305.  Duty  to  preserve  secrecy  of  message. 

306.  Same  continued — imposed  by  statute. 

307.  Same  continued— applicable  to  telephone  companies. 

308.  Messages  "in  care  of"  common  carriers. 

§  257.     Telegraph  Companies. 

Telegraph  companies  have  been  held,  with  one  exception,^  to  be 
liable  for  the  incorrect  transmission  and  safe  delivery  of  messages 
only  through  the  negligence  of  their  servants.  While  they  are  not 
common  carriers  in  the  strict  sense  of  the  term,  in  that  they  are  not 
insurers  of  a  correct  transmission  of  messages,  the  duty  which  they 
owe  the  public  is  almost  the  same.  They  must  serve  impartially  all 
who  apply  to  them  for  services  after  offering  to  comply  with  their 
reasonable  regulations.  They  must  use  proper  machinery,  skilled 
employees  and  exercise  due  diligence  in  the  transmission  of  mes- 
sages. So  long  as  this  is  done,  they  will  not  be  liable  for  damages 
as  a  result  of  errors  made  in  the  transmission;  but  so  soon  as  they 
are  guilty  of  negligence  or  willful  default  on  the  part  of  their  em- 
ployees, and  damages  arise  thereby,  they  will  be  liable.  To  be  ex- 
cused from  liability  for  such  damages,  they  must  show  that  the  in- 
correct transmission  of  the  message  was  not  caused  by  any  negligence 
or  willful  default  on  their  part.  In  other  words,  they  must  show 
that  tliey  exercised  the  same  due  care  and  diligence  in  the  transmis- 
sion and  delivery  of  the  message  as  would  be  exercised  by  a  man  of 
ordinary  understanding  and  ability  under  similar  circumstances.  The 
business  of  these  companies  has  become  so  great  in  the  commercial 

'Parks  v.  Alta  California  Tol.  Co..  clianged  hy  statute;  Civil  Code  Cal. 
13  Cal.  422,  73  Am.  Doc.  589.  The  SS21G2-21G8;  West.  U.  Tel.  Co.  v. 
rule  established   in   this  case   has  been       Coolc   (C.  C.  A.),  61  Fed.  024. 


250  TELEGRAPH  AND   TELEPHONE   COMPANIES.  [<^    257 

world  that,  in  order  to  accomplish  the  best  ends  in  correctly  making 
these  transmissions,  they  should  be  held  to  the  strictest  accounta- 
bility in  the  operation  of  their  work  and  in  the  transmission  of  their 
messages.  While  they  are  not  insurers  of  a  correct  transmission  of 
messages,  yet  on  account  of  the  importance  of  their  undertaking 
they  should  be  held  to  a  strict  observance  of  the  absolute  necessity 
of  care  on  the  part  of  their  servants. 

§  258.     Same  continued — opinion  on  point. 

•  ^N^otwithstanding  the  fact  that,  in  an  able  opinion,  telegraph  com- 
panies were  held  to  be  liable  as  bailees  for  hire,  yet  in  this  same  opin- 
ion good  reasons  were  given  why  such  companies  should  not  be  held 
liable  as  common  carriers.      It  gives  us  pleasure  to  quote  what  the 
court  has  to  say  on  this  point  with  respect  to  their  non-liability  as 
common  carriers:      "There  are  three  classes  of  cases  in  which  the 
law  has  settled  the  principle,  independent  of  the  stipulations  in  the 
contract,  to  govern  when  alleged  injuries  have  been  received  by  one 
at  the  hands  of  another.      These  are,  first,  bailments ;  second,  duties 
undertaken  by  one  claiming  to  be  skilled  in  the  matter  which  he  un- 
dertakes, such  as  professional  employments ;  and,  third,  common  car- 
riers.    As  to  the  two  first,  the  principle  is  that  reasonable  and  due 
care  and  skill,  according  to  the  nature  and  character  of  the  work 
done  or  service  rendered,  is  guaranteed,  and,  in  ease  of  injury  to 
be  exempt  the  defendant  must  show  the  presence  of  this  care  and 
skill,  or,  what  is  the  same  thing,  the  absence  of  negligence  and  inex- 
cusable carelessness.     As  to  the  latter,  to-wit,  common  carriers,  the 
more  stringent  principle  is,  that  nothing  but  an  act  of  God  or  irre- 
sistible force,  expressed  in  the  books  as  the  public  enemies,  will  ex- 
empt.    ISTow  in  which  of  these  classes  shall  telegraph  companies  be 
placed,  or  to  which  have  they  been  regarded  as  belonging?      It  is 
true,  the  business  in  which  these  companies  are  engaged  is  quasi- 
public,  but  there  is  a  wide  difference  between  them  and  common  car- 
riers, and  the  foundation  upon  which  the  very  stringent  doctrine  of 
non-exemption,  except  for  an  uncontrollable  cause,  is  imposed  by  the 
law  upon  common  carriers  is  altogether  wanting  as  to  a  telegraph 
company.      There  is  no  motive  or  opportunity  for  a  telegraph  com- 
pany to  make  mistakes  or  commit  errors.      There  is  no  inducement 


<§    259]  AS   TO    MESSAGES LIABILITY.  251 

or  possibility  for  sucli  cuinpaiiics  to  appropriate  anything  which  may 
be  intrusted  to  them,  to  their  own  benefit,  at  the  sacrifice  of  their 
employers  interests.     Their  business  is  simply  to  transmit  messages 
by  the  medium  of  that  mysterious  agent,  electricity,  which  with  in- 
ereasing  progress  is  now  being  made  to  contribute  so  wonderfully  and 
so  usefully  to  our  wants.     In  the  discharge  of  their  duties  the  prin- 
ciple qualifications  required  are  experience,  practice,  and  good  faith 
on  the  part  of  their  agents  and  servants,  but  even  with  the  best  quali- 
fied employees  much  depends  upon  electric,  atmospheric,  and  other 
subtle  influences  beyond  the  reach  of  experience  and  the  utmost  skill. 
While,  therefore,  there  is  reason  for  holding  them  responsible  for  the 
qualifications  necessary  for  the  proper  performance  of  the  work  which 
they  purpose  to  do,  as  the  first  classes  mentioned  above  are  held,  to- 
wit,  professional  employees  and  bailees,  yet  there  is  no  reason  for 
holding  them  as  insurers  like  common  carriers.      Common  carriers 
transport  goods,  merchandise  and  other  corporeal  materials,  whicJi 
are  constantly  in  their  possession  from  the  commencement  of  their 
trip  until  the  destinations  are  reached,  and  it  is  entirely  reasonable 
that  they  should  guard  and  protect  these  goods  against  all  dangers 
which  can  be  warded  off  by  human  power.     But  telegraph  companies 
transmit  ideas — intangible  and  fleeting  things — which  when  placed 
upon  the  wire  instantly  escape  from  the  hands  of  the  operators,  and 
in  a  moment,  yea,  in  the  twinkling  of  an  eye,  are  hundreds  and  thou- 
sands of  miles  away,  far  beyond  the  reach  and  control  of  him  who 
started  them  upon  their  distant  mission,  passing  through  different 
parallels  of  latitude  or  degrees  of  longitude,  as  the  case  may  be,  with 
the  rapidity  of  thought,  but  encountering  for  themselves  all  the  dan- 
gers or  obstacles  that  mav  be  met  bv  the  way.    To  apply  the  rule  of 
common  carriers  to  these  companies  would,  it  seems  to  us,   be  ex- 
tremely unjust,  and  to  hold  them  absolutely  liable  as  insurers  would 
greatly  impair  this  mode  of  correspondence,  crippling  if  not  destroy- 
ing a  most  important  and  growing  department  of  business."  - 

§  259.     Not  liable  as  ordinary  bailees  for  hire. 

It  has  been  held  by  some  courts  that  the  legal  status  of  telegraph 
companies  was  that  of  ordinary  bailees  for  hire,  and  liable  for  the  in- 

^Pinckney   V.   Telephone    Co..    19     S.       Tel.  Co.  v.  Blandianl,  45  Am.  Kop.  487. 
C  71.  cited  in  note  to  case,  West.  U 


252  TELEGRAPH  AND  TELEPHOXE  COMPANIES.  [^    259 

correct  transmission  and  delivery  of  messages  as  such;^  but  as  said 
on  this  subject  under  a  different  head,  this  is  an  erroneous  idea. 
There  is  no  doubt  but  that  there  exists  a  similarity  between  the  lia- 
bilities of  the  two;  but  on  account  of  the  posi.tion  they  occupy  to- 
ward the  public,  the  ground  on  which  the  liability  arises  is  differ- 
ent, thereby  making  the  liability  itself  different.  They  are  not  in- 
surers of  the  property  intrusted  to  their  care,  and  are  liable  only 
for  negligence  in  the  performance  of  their  trust.  To  this  extent  there 
is  a  similarity,  but  for  the  reason  that  the  public  has  no  interest  in 
an  ordinary  bailee,  the  latter  may  limit  its  liability  by  contract,  on 
which  its  liability  solely  arises.  On  the  other  hand,  the  public  has 
an  interest  in  telegraph  companies,  and  to  that  extent  it  must  con- 
trol. As  his  been  often  said,  they  cannot  discriminate,  but  must  act 
impartially  toward  all.  Their  duties  are  not  founded,  as  ordinary 
bailees,  on  contracts  altogether,  but  are  derived  from  the  public  trust 
which  they  occupy.  They  may  limit  their  liabilities  as  bailee  to  a 
certain  extent  by  reasonable  regulations,  yet  they  cannot  enforce  a 
regulation  by  which  they  may  be  exonerated  for  the  negligence  of 
their  servants.  There  is  no  possible  way  by  which  they  may  con- 
tract away  their  liabilities  for  the  negligence  in  the  transmission  and 
delivery  of  messages.  It  is  a  well-known  principle  of  law  that  an 
ordinaiy  bailee  for  hire,  because  it  is  not  exercising  a  public  duty, 
may  choose  with  whomsoever  it  may  see  fit  to  do  business  and  may 
contract  in  such  manner  as  to  relieve  it  of  all  responsibilities;  but 
this  is  not  the  rule  applicable  to  telegraph  companies.'* 

§  260.     Same  continued — telegraph  and  telephone — liabilities — dis- 
tinctions. 

Telegraph  and  telephone  companies  occupy  a  very  peculiar  posi- 
tion toward  the  public  with  respect  to  their  duties  in  the  faithful  per- 
formance of  their  mission,  and  the  liabilities  arising  therefrom  for 
a  non-performance  of  same.      They  are  not  strictly  common  carriers, 

^See  note   1.  v.  Xe\v  York,  ttc,  Printing;  Co.,  18  Md. 

^Gillis  V.  West.  U.  Tel.  Co.,  61  Vt.  .341.  81   Am.     Dec.  607;      Smithson  v. 

461,  17  All.  736,  15  Am.  St.  Rep.  917;  United    States    Telegraph    Co.,    29   Md. 

West.  U.  Tel.  Co.  v.  Fontaine,  58  Ga.  102;  Pinckney  v.  West.  U.  Tel.  Co.,  19 

4.3.3;    West.   U.   Tel.   Co.   v.   Blanchard,  S.  Cur.  71,  45  Am.  Rep.  765. 
68   Ga.  299,  45  Am.  Rep.  480;   Birney 


<^    260]  AS   TO    MESSAGES LIABILITY.  253 

nor  are  they  ordinary  bailees  for  hire,  but  they  have  features  resemb- 
ling both  of  these.     In  the  first  place,  they  must  furnish  equal  facili- 
ties impartially  to  all  and  herein  they  resemble  common  carriers ;  but 
they  are  likened  unto  bailees  in  that  they  are  not  insurers.     In  other 
words,  they  occupy  a  land  of  middle  ground  between  the  two.     They 
may  be  class  as  a  species  of  agency,  acting  in  behalf  of  both  sender 
and  sendee  or  those  conversing  as  principals,  and  liable  as  any  other 
agent  occupying  a  similar  position.       They  are  a  go-between,  or  a 
means  by  which  people  in  remote  sections  are  brought  into  almost 
as  close  contact  with  each  other,  with  respect  to  the  communication 
of  thoughts  and  ideas,  as  if  they  were  together  in  person.     While  the 
object  of  these  companies  are  the  same — the  transmission  of  intelli- 
gence by  means  of  electricity — yet  the  manner  in  which  the  objects 
are  carried  out  is  so  varied  that  the  responsibility  imposed  on  each  is 
somewhat  different.     For  the  reason  that  the  manner  of  transmitting 
news  over  a  telegraph  company  is  manipulated  almost  entirely  by 
servants,  skilled  and  experienced  in  such  business,  the  parties  com- 
municating doing  nothing  more  than  properly  preparing  and  deliver- 
ing the  message  to  the  company,  it  is  under  a  greater  responsibility 
toward  its  patrons,  than  a  telephone  company  which  only  furnishes 
the  means  by  which  the  communicants  are  brought  together.      It  is 
true  that  the  latter  company  must  furaish,  impartially,  the  best  in- 
struments, facilities,  connections  and  accommodations  to  all,  serve 
all  in  the  regular  time  in  which  they  call,  and  put  the  applicants  in 
proper  connection,  so  they  may  be  enabled  to  understand  each  other 
while  talking.      When  this  is  done,  the  company's  responsibilities 
are  at  an  end.      Any  misunderstanding  of  the  conversation  brought 
about  by  the  default  of  the  company,  which  could  be  imputed  as  neg- 
ligence, if  the  same  were  made  by  a  telegraph  company,  should  be 
corrected  by  the  communicants  themselves  while  conversing,  with  the 
assistance  of  the  company;  should,  however,  the  latter  be  the  caust- 
of  the  misunderstanding,  through  its  negligence,  it  should  be  liable 
for  all  damages  arising  thereby.      In  other  words,  for  the  reason  of 
the  fact  that  those  who  canw  on  conversations  over  telephones  enter 
into  and  assume  some  of  the  burden?  connected  witli  the  means  of 
Transmitting  tlio  intelligence,  which  is  otherwise  borne  exclusively  by 
telegraph  cnm]ninio^.  they  should  likewise  assume  some  of  the  respon- 


254r  TELEGRAPH  AXD  TELEPHONE   COMPAJflES.  [<^    260 

?ibilities,  or,  rather,  relieve  the  company  of  some  of  them.  Of  course 
they  may  under  certain  conditions  be  just  as  liable  as  telegraph  com- 
panies, as  where  the  servant  of  the  company  as  agent  for  the  latter, 
carries  on  the  conversation  for  another  party. 

§  261.     Same  continued — telephone. 

It  is  not  the  duty  of  telephone  companies  to  deliver  messages  be- 
yond the  termini  of  their  lines,  as  it  is  not  presumed,  at  the  time  the 
parties  are  placed  in  direct  communication  with  each  other,  that  such 
was  the  duty  of  these  companies ;  but,  where  the  agent  of  the  com- 
pany has  the  apparent  authority  to  receive  messages  for  delivery,  the 
company  will  be  liable  for  damages  in  the  negligent  performance  of 
.the  undertaking.^  Thus,  where  it  is  agreed,  through  the  knowledge 
of  the  company,  betw^een  a  party,  who  pays  the  charges  for  trans- 
mission and  an  extra  charge  for  the  delivery,  and  the  agent  at  one  of 
the  termini  of  the  company's  line  that  the  latter  will  receive  and 
deliver  a  message  two  miles  from  the  office  of  the  company,  and  the 
agent  negligently  delays  in  delivering  same  for  eight  hours  after  the 
message  is  received,  and  damages  arise  thereby,  the  company  will 
be  liable.*^  And  it  will  be  no  ground  for  defense  that  the  agent  be- 
lieved that  the  sendee  would  not  be  benefited  or  would  not  be  enabled 
to  comply  with  the  wishes  of  the  message  by  an  earlier  and  more 
prompt  delivery  of  same.  It  is  no  duty  of  the  agent  to  speculate  as 
to  the  necessity  of  a  prompt  delivery  of  the  message,  but  he  should 
use  due  diligence  in  making  a  prompt  delivery.^  In  order  for  the 
sendee  to  recover  damages,  under  such  circumstances,  he  must  prove 
that  he  could  and  would  have  complied  with  the  apparent  wishes  of 
the  message.^ 

^  In  many  cases,  telephone  companies  "  Cumberland  Tel.  Co.  v.  Brown,  104 

contract  to  send  messages  in  the  nature  Tenn.  50,  50  L.  R.  A.  277,  78  Am.  St. 

of  telegrams  and  when  such  is  the  case,  Rep.   906;    Southwestern,  etc.,  Tel.  Co. 

they    are    under    the    same    obligations  v.  Dale,  27  S.  W.  1050. 

and  subject  to  the  same  liabilities  as  '  See  note  4. 

telegraph  companies,  and  are  bound  by  *  Telephone  Co.  v.  Brown,  104  Tenn. 

the  ^ame  rules.     See  notes  to  West.  U.  56,  78  Am.  St.  Rep.  906,  50  L.  R.  A. 

Tel.    Co.   V.    Cooper,    10  Am.    St.   Rep.  277. 
778;  West.  U.  Tel.  Co.  v.  Luck,  66  Am. 
St.  Rep.  873. 


<§    262]  AS   TO   MESSAGES LIABILITY.  255 

§  262.     Message  for  person — make  reasonable  search. 

As  said  above,  it  is  prcsiiined  that  parties  desiring  to  converse  over 
telephone  lines  are  put  in  direct  communication  with  each  other,  and 
that  it  is  not  under  the  same  duty  to  deliver  the  messages  as  it  is  for 
telegraph  companies  to  deliver  telegrams,  unless  it  apparently  as- 
sume the  duty;  but  in  order  to  place  the  parties  in  communication 
with  each  other  it  is  often  necessary  to  search  for  the  party  called. 
For  instance,  suppose  a  call  is  put  in  for  a  certain  person,  who  may 
or  may  not  be  a  subscriber,  and  it  is  necessary,  in  order  to  get  the 
party,  to  send  out  and  notify  him  of  the  call.  The  question  which 
presents  itself  it.  Is  it  the  duty  of  the  company  to  send  out  for  the 
party  called  ?  It  seems  to  us  that  if  the  party  wanted  is  within  a 
reasonable  distance  of  the  company's  exchange  it  is  the  duty  of  the 
latter  to  make  reasonable  efforts  to  reach  him ;  surely  it  is,  if  extra 
charges  have  been  collected  for  such  services.  Many  times  such  calls 
are  made  for  parties  who  are  entire  strangers  in  the  tow^n,  to  which 
doubtless,  there  are  no  other  means  of  reaching  him — as  by  telegram. 
To  say  that  the  company  is  not  under  some  obligations  to  the  public 
to  make  an  effort  to  apprise  him  of  the  call  would  be  nothing  less 
than  to  release  it  from  performing  one  of  its  public  duties ;  that  is, 
to  furnish  equal  facilities  to  all  who  apply  for  services,  after  offer- 
ing to  comply  with  its  reasonable  regulations.  Although,  it  is  rather 
difficult,  in  this  instance,  to  lay  down  any  principle  of  law,  as  a  stand- 
ard of  measurement,  in  determining  what  Avould  be  a  reasonable  dis- 
tance, within  which  search  should  be  made,  yet  each  case  should  he 
taken  and  considered  somewhat  on  its  own  merits.  By  the  construc- 
tion of  an  Indiana  statute,  it  has  been  held  that  it  is  the  duty  of 
telephone  companies,  in  that  state,  to  notify  a  person  living  within  a 
reasonable  distance  of  the  receiving  station  that  he  is  w^anted.^  It 
does  not  seem  to  us  that  it  is  necessary-  for  the  existence  of  such  a 
statute,  in  order  to  impose  on  the  company  the  duty  of  notifying  a 
person  who  lives  within  a  reasonable  distance  of  the  receiving  office ; 
but  the  question  to  be  decided  is,  What  is  a  reasonable  distance  from 
the  receiving  office  to  where  the  party  wanted  lives  ?  It  is  very  evi- 
dent that  the  company  is  not  under  the  same  obligations  it  otherwise 
would  be,  if  extra  charges  had  been  collected  for  performing  this 

"Central  U.   Tel.   Co.   v.    Swoveland,      14  Ind.  App.  341. 


256  TELEGIiAPH   A^'i)  TELEPHONE   COMPANIES.  [<^    262 

service.  So,  while  it  may  be  seen  that  this  is  one  of  the  duties  of 
these  companies,  yet  it  is  one  not  to  be  so  closely  observed  as  those 
for  which  they  are  directly  compensated. 

§  263.     Same  continued — when  compensated. 

The  preceding  sections  have  reference  particularly  to  calls  made 
where  no  extra  charges  have  been  collected  for  delivery.  If  the  com- 
pany has  been  compensated  additionally  for  its  services  in  getting  the 
party  called  to  the  telephone,  it  will  be  under  the  same  obligation  to 
discharge  this  duty  as  is  imposed  on  telegraph  companies  for  deliv- 
ering telegrams,  under  like  circumstances.  A  greater  per  cent  of 
the  telephone  exchanges  are  in  country  towns,  and  the  revenues  de- 
rived from  this  kind  of  services  are  not  always  sufficient  to  justify 
the  company  in  keeping  a  messenger  boy.  But  wherever,  at  such 
places,  a  call  has  been  put  in  for  a  certain  party  and  extra  charges 
have  been  collected  for  such  services,  it  is  the  duty  of  the  company 
to  make  a  reasonable  effort  to  find  the  party  called,  and  should  some 
one  be  engaged  or  employed  by  the  agent  of  the  company  to  perform 
such  services,  it  will  be  just  as  liable  for  the  negligence  of  such  per- 
son in  the  discharge  of  such  services,  as  if  he  was  a  penuanent  em- 
ployee whose  duties  were  of  this  particular  nature.  To  hold  other- 
wise, would  relieve  these  companies  of  one  of  their  public  functions, 
and  furnish  them  a  means  of  avoiding  many  of  their  liabilities.  So, 
it  will  be  seen,  under  such  circumstances,  that  it  is  not  only  the  duty 
of  the  company  to  exercise  a  reasonable  degree  of  care  in  the  selection 
of  its  messengers,  but  it  must  also  exercise  the  same  care  in  seeing 
that  the  messenger  properly  discharged  his  duty  in  making  a  rea- 
sonable search  for  the  party  called. 

§  264.     Long  distance    telephone — disconnected    at    intermediate 
points. 

A  long  distance  telephone  company,  holding  itself  out  to  furnish 
connections  beyond  the  termini  of  its  lines,  is  under  obligations  to 
the  public  to  perform  such  duty ;  and,  on  a  failure  to  secure  such  con- 
nections, through  the  negligence  of  its  agents,  at  the  terminus  of  its 
lines  whereby  damages  are  incurred,  the  company  will  be  liable  for 
such  damages.^*^    When  the  company  holds  itself  out  to  perform  such 

'"Southwestern  Tel.  Co.  v.  Taylor,  2fi      Tex.  Civ.  Ajii).  70. 


^    265]  AS   TO   MESSAGES LIABILITY.  257 

duty,  it  is  incumljcnt  on  it  to  discharge  that  duty  to  the  be^t  of  its 
ability.  In  other  words,  it  is  part  of  the  contract  continuously  of- 
fered to  the  public,  at  all  times,  and  when  any  applicant  accepts  the 
benefits  arising  therefrom,  by  compensating  the  company  for  such 
services,  the  company  must  carry  out  its  part  of  the  contract,  and  if 
a  failure  to  do  so  is  caused  by  its  servants  negligently  failing  to 
furnish  the  proper  connection  with  other  lines,  over  which  the  dis- 
tant communicant  is  finally  to  be  reached,  and  damages  arising  there- 
from, the  company  will  be  liable.  ^^ 

§  265.     Duty  of  telegraph  companies  to  transmit — arises  not  on 
contract  alone. 

As  heretofore  said,  the  duties  and  obligations  of  telegraph  com- 
panies to  transmit  and  deliver  messages  do  not  arise  altogether  from 
contracts.  They  are  quasi-public  corporations,  exercising  privileges 
acquired  from  the  state  and  federal  government,  which  im]x»ses  on 
them  a  greater  duty  than  could  be  enjoyed  if  it  were  a  mere  contract 
made  between  two  individuals.  It  is  true,  that  thoy  can  make  rea- 
sonable contracts  with  their  patrons  whereby  thoy  may  limit,  to  a 
certain  extent,  their  common  law  liabilities,  but  they  cannot  evade 
their  entire  duties  and  obligations  which  they  owe  the  public  by  a 
contract.  This  would  give  them  too  much  power  by  which  frauds 
would  be  perpetrated  and  impositions  cast  upon  the  public;  since  it 
is  often  the  case  that  these  companies  are  called  on  to  transmit  mes- 
sages of  the  greatest  importance,  and  in  order  to  accomplish  the  pur- 
poses for  which  they  are  sent,  they  should  be  transmitted  in  the  most 
possible  haste.  When  this  is  the  case,  the  sender  has  no  time  to  in- 
vestigate the  purport  and  nature  of  the  contract,  and  should  not  be 
forced,  at  sueli  a  time,  to  accept  any  contract  M-hioli  may  be  held  out 
to  him  by  the  company.  It  is  a  duty  which  they  owe  the  government 
to  make  prompt  and  correct  transmissions  of  messages,  and  it  is  not 
necessary  that  such  a  duty  be  imposed  on  them  by  the  statutes ;  since 
it  is  a  common  law  duty.      It  is  trno  that  the  contract  for  seudin;,' 

"  Smith  V.  West.  U.  Tel.  Co..  84  Tex.  held  therein  that  it  was  under  obliga- 

359,  31  Am.  St.  Eep.  fjO.     In  this  case  tions  to  make  a  prompt  and  correct  de- 

the  defendant  was  the  connecting  com-  livery  of  the  toleirram.  regardless  of  the 

pany  over  whose  lines  the  message  was  contract    made     with    the    initial     line 

to  reach    it<      dostinatioii   and   it     was  with   the  sender. 
T.  .^-    T.— 17 


258  TELEGKAPH  AND  TELEPHONE   COMPANIES.  [<^    265 

gives  force  and  effect  to  the  duty  which  is  imposed  upon  such  com- 
panies, but  the  contract  alone  does  not  fix  the  measure  of  their  du- 
ties and  obligations.  This  contract  must  be  controlled,  to  a  certain 
extent,  by  the  public  duty ;  since  if  there  is  any  material  part  of  the 

contract  in  conflict  with  this  public  duty,  it  will  be  of  no  force  and 
effect.  12 

§  266.     Same  continued — further  duties. 

Telegraph  companies  are  under  a  legal  duty  to  accept,  transmit  and 
deliver,  without  error  or  delay,  all  proper  messages  presented,  after 
they  have  been  compensated  for  such  service,  and  any  injury  arising 
proximately  out  of  a  failure  to  perform  such  duty,  will  subject  them 
to  damages.  They  are  exercising  a  public  employment  and  must  sub- 
ject themselves  to  all  demands  of  the  government.  As  public  ser- 
vants, they  should  be  ready  and  willing  to  obey  any  mandate  or  r€'- 
quest  of  the  public.  "Their  relation  to  the  public  imposes  upon  them 
the  duty  of  undertaking  as  well  as  the  duty  of  performing,  and  the 
violation  of  either  duty  is  a  negligence,  a  tort.  It  is  the  equivalent, 
therefore,  of  an  affirmative  interference  by  a  mere  private  person  to 
hinder  or  obstruct  communication.  For  one  of  these  companies  not 
to  receive  or  not  to  transmit  and  deliver  a  dispatch  when  it  ought  to 
do  so  is  more  than  a  refusal  to  contract  or  than  the  breach  of  a  con- 
tract. It  is  a  wrong  as  pronounced  as  would  be  that  of  a  person  who 
should  forcibly  exclude  another  from  the  telegraph  office,  and  pre- 
vent him  from  handing  in  a  dispatch  which  he  desired  to  lodge  for 
transmission.  In  dealing  Avith  the  wrong  as  such,  the  element  of 
contract  is  not  involved."^^ 

§  267.  Same  continued — must  accept  proper  messages — not  im- 
proper or  such  as  would  subject  the  company  to  indict- 
ment. 

The  first  duty  of  these  companies  is  to  accept  all  i)roper  messages 
presented  to  them  for  transmission,  after  a  payment  has  been  made, 

"Smith  V.  West.  U.  Tel.  Co.,  83  Ky.  U.  Tel.  Co.  v.  I'vcynolds,  77  Va.  173,  40 

104,  4  Am.  St.  Rep.  126;  Ellis  v.  Am-  Am.  Rep.  715. 

erican  Tel.  Co.,  13  Allen   (Mass.)   231;  "Gray  v.  West.  I'.  Tel.  Co..  87  Ga. 

Warlsworth   v.    West.   U.   Tel.    Co.,    86  350,  27  Am.  St.  Rep.  2()0,  14  L.  R.  A. 

Tenn.   695,  6  Am.   St.  Rep.   864;   West  95,  13  S.  E.  562. 


§    26b]  AS   TU    .UKSSAGKS LlAlilLiTV.  L'5'J 

or  an  olier  to  pay  a  reasonable  fcuiii  iur  oucli  serviceij.  While  this  i>> 
the  general  rule,  yet  there  may  be  instances  when  these  companies 
may  refuse  to  accept  messages  for  transmission.^"*  Thus  they  may 
refuse  to  accept  a  message  for  transmission,  which  clearly  shows  on 
its  face  matters  which  would  subject  them  to  a  criminal  prosecution. 
Xo  person  is  under  any  legal  duty,  or  can  be  compelleil  by  law  to  com- 
mit, foster  or  aid  in  the  commission  of  a  crime.  The  laws  were 
enacted  and  are  enforced  to  accomplish  the  direct  opposite  results. 
Telegraph  companies  are  but  persons  in  the  eye  of  the  law,  enjoying 
(•ertain  ])rivileges  and  imniunities  as  such  and  for  the  reason  that 
their  rights  and  duties  toward  the  government  are  somewhat  differ- 
ent from  that  of  individuals,  is  no  reason  why  they  should  be  under 
any  obligation  to  the  public' to  do  an  act  which  would  make  them 
liable  criminally.  It  follows,  therefore,  that  they  are  under  no  obli- 
gations, or  can  be  forced,  to  accept  a  message  for  transmission  which 
would  have  the  tendency  of  subjecting  them  to  a  criminal  prosecu- 
tion, either  as  a  principal  or  an  accessory.  To  relieve  the  company 
however  of  this  duty,  it  must  clearly  apj^ear  on  the  face  of  the  mes- 
sage that  it  would  subject  it  to  an  indictment,  and  every  doubt 
should  be  construed  in  favor  of  the  message.  The  moral  effect  of  the 
telegram  would  not  b(^  for  their  consideration,  and  yet,  thev  mav  re- 
fuse  to  accept  any  message  which  shows  any  indecency  or  profanity  on 
its  face.  In  many  instances,  the  messages  presented  to  the  company 
are  written  in  such  a  style  or  in  such  a  manner  as  that  it  would  not 
be  apprised  of  their  meaning  or  purport — and  among  which  there  may 
be  some  which  are  very  immoral;  yet,  the  company,  not  being  able 
to  ascertain  the  meaning  of  these  on  their  face,  it  being  presumed 
that  the  operators  could  not  read  the  niin<1s  and  consciences  of  the 
sender — should  not,  therefore,  be  held  li;iblc  for  their  moral  effect.'"'^ 

§  268.     Same  continued — such  as  would  subject  to  action  of  tort. 

So,  for  the  same  reasons,  a  telegraph  company  is  not  under  obli- 
gations to  any  one  to  accept  a  message  for  transmission,  which  would 
lay  it  liable  to  an  action  of  tort.  While  they  may  and  do  commit  torts 
in  many  and  various  ways,  yet  they  cannot  he  forced  to  do  any  act 

'*  Alexander  v.  WoM.   V.  Tel.  Co..  r.(i  "Gray  v.   \Yos1.    T.   Tel.   Co..  87   Ga. 

Miss.  101.  .-)  So.  .SOT.  14  Am.  St.  Kop.  :?.iO.  l.S  S.  E.  5Cr2.  14  L.  R.  A.  95.  27 
556,  3  L.  K.  A.  71.  Am.   St.  Rep.  2G0;   Smith  v.  West.  U. 

T(  1.  Co..  L^4  Kv.  004. 


260  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    268 

wliich  would  make  them  liable  for  one.^^  "Doubtless,"  as  was  said 
on  this  subject,  "a  dispatch  to  be  entitled  to  transmission  must  be  free 
from  open  indecency  or  profanity,  and  perhaps  other  vices  of  lang- 
uage might  condemn  it;  but  supposing  it  to  be  proper  in  tone  and 
expression,  wc  should  say  that  the  companies  would  have  no  concern 
with  its  import  unless  it  sought  to  subserve  either  crime  or  tort.  If 
it  disclosed  either  of  these  objects,  it  seems  to  us  that  the  company, 
for  its  protection,  might  and  should  refuse  to  handle  it.  It  would  be 
unreasonable  to  suppose  that  the  legislature  intended  telegraph  com- 
panies to  aid  in  the  perpetration  of  crimes  or  actionable  wrongs,  for 
this  would  be  to  constrain  them  to  do  by  legislative  mandate  what 
they  would  have  no  right  to  do  bv  their  own  choice. "^'^ 

§  269.     Same  continued — lines  down — other  reasons. 

If  the  company's  lines  are  down,  or  for  any  other  reason  it  cannot 
transmit  the  messages,  it  may  decline  to  accept  same ;  but  if  the  com- 
pany accepts  the  message,  knowing  these  facts,  without  informing 
the  sender,  it  will  be  liable  for  a  failure  to  transmit,  although  the 
transmission  was  impossible.  ^^  Ihus,  where  the  company's  agent 
receives  the  message  to  be  transmitted  to  a  certain  place,  it  will  be 
liable  for  a  failure  to  transmit,  even  though  the  company  has  no  of- 
fice at  this  place,  which  fact  the  agent  did  not  know  until  after  the 
message  had  been  received.  But  for  the  reason  that  the  name  of  the 
station  is  not  entered  in  the  official  guide  book,  is  no  reason  for  refus- 
ing to  receive  a  message  for  that  place.  ^^  It  is  presumed  that  the 
agent  knows  or  has  a  means  of  knowing  all  the  stations  of  the  com- 
pany.^" In  fact,  this  is  the  reason  why  these  companies  should  be 
required  to  keep  an  official  guide  book,  and  if  the  name  of  the  station 
is  not  entered  or  is  incorrectly  entered  therein,  this  negligence  itself 
would  make  the  company  liable.  It  seems  that  it  would  not  only  be 
liable  for  a  failure  to  transmit  to  a  station  on  its  line,  not  entered  on 
the  official  guide  book,  but  to  any  other  place  on  any  other  line  not 

^»Gray  v.  West.  U.  Tel.  Co.,  87  Ga.       Co.,  29  Tex.   Civ.  App.  520,  69  S.  W. 
350,  14  L.  R.  A.  95,  27  Am.  St.  Rep.       181. 
260,  13  S.  E.  562.  "West.  U.  Tel.  Co.  v.     Downs,     25 

"Id.  Tex.  Civ.  App.  597,  62  S.  W.  1078. 

"  West.   U.  Tel.   Co.  v.   Birge-Forbes  =»  West.  U.  Tel.  Co.  v.  Jones,  69  Mi?s. 

658,   13  So    471,  30  Am.  St.  Rep.  579. 


§    271]  AS   TO    MESSAGES LIABILITY.  261 

officially  entered  in  this  guide  book,  but  to  a  place  it  could  reach.  In 
such  a  case  the  company  would  be  liable  as  in  the  nature  of  an  agent 
for  the  company  on  whose  line  the  place  was  located,  and  by  whose 
negligence,  the  name  of  the  station  had  been  omitted.  In  the  last 
cited  case  it  would  not  be  good  reason  to  hold  either  the  receiving  com- 
pany, or  the  connecting  company  over  whose  line  the  message  was  to 
finally  reach  its  destination,  liable  for  a  failure  to  transmit,  where 
the  latter  company's  lines  were  down,  which  fact  was  not  known  by 
the  first  company  but  was  known  by  the  latter. 

§  270.     Must  be  properly  tendered — in  writing. 

Xo  duty  or  liability  on  the  part  of  a  telegraph  company,  with 
respect  to  the  transmission  of  a  message  arises  until  it  has  been  prop- 
erly tendered  at  the  company's  office  for  transmission.  It  must  be 
in  conformity  to  the  reasonable  rules  and  regulations  of  the  company. 
One  of  the  rules  of  the  company,  and  one  to  be  complied  with  in  or- 
der to  constitute  proper  tender,  is  that  the  message  must  be  in  writ- 
ing. "It  is  common  knowledge,"  as  was  said  by  Judge  Cambell,  "that 
messages  are  required  to  be  written,  and  upon  the  blanks  of  the  com- 
pany, and  it  ^vould  be  hazardous  to  pursue  any  other  course. "^^  He 
further  said :  "In  the  absence  of  s'atisfactory  evidence  of  a  known 
course  of  business  by  the  telegraph  company  to  receive  verbal  mes- 
sages orally  delivered  to  operators  for  transmission,  we  are  not  wil- 
ling to  sanction  the  proposition  that  failure  to  transmit  such  a  mes- 
sage is  a  ground  for  recovery  against  the  company,  either  by  statute 
or  common  law."  -^  When  it  is  the  rule,  that  the  messages  shall  be 
in  writing,  unless  it  has  been  the  custom  of  the  company  to  receive 
them  orally,  it  is  not  necessary  that  they  should  be  in  any  particular 
language  or  in  any  peculiar  style,  provided  the  operator  of  the  com- 
pany understands  the  language  or  style.  In  other  words,  it  is  not  nec- 
essary that  they  know  the  meaning  of  the  message,  provided  they 
have  the  knowledge  of  what  to  send,  and  how. 

§  271.     Same  continued — must  be  on  company's  blank, 

x\nother  regulation  of  the  company,  and  one  which  is  generally 
held  to  he  reasonable,  is,  that  the  message  shall  be  written  on  one  of 

^'West.  U.  Tel.  Co.  v.  Dozier.  7  So.  "Id. 

325. 


262  TELEGRAPH  AND  TELEPHONE   COMPANIES,  ["^    271 

the  company's  blank  forms.  Mere  delivery  of  a  message,  written  on 
a  leaf  torn  from  a  blank  book,  without  any  word  spoken  either  by 
the  plaintiff's  messenger  or  the  company's  operator  concerning  the 
sending  of  the  message,  and  an  absence  of  any  payment  made,  or  ten- 
dered, of  the  price  for  transmission,  is  insufficient  to  create  a  lia- 
bility against  the  company  for  failing  to  send  such  message.^^  But 
if  the  message  is  received  by  the  company  and  paid  for  by  the 
sender^  the  company  is  bound  to  transmit  it,  although  it  is  written 
on  paper  other  than  its  usual  blanks.^^  A  presumption  of  delivery 
for  transmission  arises  from  the  receipt  of  a  message  written  on  one 
of  the  comj)any's  blanks.^''  But  the  fact  that  the  message  was 
not  on  one  of  the  company's  regular  blanks,  nor  in  writing  at  all,  but 
was  merely  telephoned  to  the  operator,  will  not  affect  the  company's 
liability  where  the  negligence  complained  of  is  a  failure  to  deliver 
after  transmission.  The  rule  that  the  company's  forms  shall  be  used 
is  a  reasonable  one,  for  it  contains  that  part  of  the  company's  con- 
tract which  must  be  accepted  and  agreed  to  by  the  sender;  and  to 
compel  it  to  accept  messages  on  other  paper  would  deprive  it  of  some 
of  the  privileges  and  immunities  it  could  otherwise  claim.  It 
is  true  that  the  courts  have  held  that  some  of  these  stipulations 
were  of  no  force  and  effect,  hut  this  is  no  reason  why  such  companies 
may  not  relieve  themselves  from  liabilities  by  those  which  are  reason- 
able. These  companies  are  entitled  to  the  protection  of  the  laws,  and 
this  rule  will  protect  them  in  many  instances  and  should  be  enforced. 
The  message  must  be  made  out  on  the  blank  form  and  signed  either 
bj  the  sender  or  his  agent  in  order  to  hold  him  liable  for  the  stipu- 
lation therein.  For,  if  an  agent  of  the  telegraph  company  receives 
a  message  for  transmission,  written  on  a  plain  piece  of  paper,  and 
attaches  it  to  one  of  such  blanks  without  callino;  tlie  attention  of  the 
sender  to  the  regulations  printed  thereon,  he  acts  as  agent  for  the 
company  alone,  and  the  sender  is  not  bound  by  such  regulations ;  but 
he  may  recover  for  the  negligence  of  the  company  in  the  transmis- 
sion of  the  message.^^ 

=^'West.  U.  Tel.  Co.  v.  Liddell,  8  So.  =°West.  U.  Tel.  Co  v.  Riissel,  31   S. 

510.     See   note  to  West.   U.   Tel.    Co.,  W.  698. 
V.  Blanchard,  45  Am.  Rep.  490.  26jjj^j.j.is   y    West.   U.    Tel.    Co.,    121 

^West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  Ala.  519,  25  So.  910,  77  Am.  St.  Rep. 

658,  13  So.  471,  30  Am.  St.  Eep.  579.  70. 


<5,    273]  AS   TO   MESSAGES LIABILITY.  263 

§  272.     Delivery  to  messenger  boy — not  delivery  to  company. 

A  ck'livery  of  a  message  to  one  of  the  company's  messenger  boys, 
written  on  one  of  its  blanks,  is  not  a  delivery  to  the  company  unless 
■  it  has  been  accepted  by  the  latter  at  one  of  the  transmitting  offices. 
It  is  very  often  the  case,  that  a  message  is  written  out  on  one  of  the 
company's  blanks,  and  given  to  one  of  the  messenger  boys  by  the 
sender  with  the  request  that  he  deliver  it  to  the  company  for  trans- 
mission; notwithstanding  the  fact  that  this  may  be  the  usual  way 
the  sender  lias  of  delivering  messages  for  transmission,  yet,  a  delivery 
to  the  company  in  such  a  manner  would  not  be  a  proper  delivery  to  it. 
The  reason,  assigned  for  the  soundness  of  this  rule,  is,  that  on  nearly 
if  not  all  of  these  blanks  there  is  a  stipulation  to  the  effect,  that  when 
messages  are  delivered  to  the  messenger  boy,  he  shall  be  considered 
the  agent  of  the  sender  and  not  that  of  the  company  in  that  partic- 
ular business,  and  when  the  sender  signs  the  message  he  should  be 
bound  by  this  stipulation.     It  is  a  reasonable  regulation;  since,  in 
some  cases,  the  operator  of  the  company  may  have  reasons  for  not 
accepting  a  message  for  transmission  and  of  which  the  messenger 
would  have  no  knowledge.     It  is  well  known  that  the  messengers  are 
usually  young  and  inexperienced  boys,  and  of  course  are  not  fami- 
liar with  the  rules  in  regard  to  the  proper  messages  to  be  accepted 
for  transmission.     It  follows,  therefore,  that  if  a  delivei-j-  to  a  mes- 
senger should  be  considered  a  delivery  to  the  company,  the  latter 
would  be  liable  for  failure  to  send  a  message  delivered  to  its  messen- 
ger, although  to  do  so  would  subject  the  company  to  an  indictment  or 
to  an  actionable  wrong.-"    If,  however,  the  message  has  been  deliver- 
ed to  one  of  the  transmitting  offices  of  the  company,  and  it  is  a  proper 
message  for  transmission^  it  is  then  a  delivery  to  the  company.^^ 

§  273.  Same  continued — prepayment  of  charges  before  accepting. 
Although  telegraph  companies  are  exercising  a  public  function  and 
must,  therefore,  serve  all  impartially  who  apply  to  them,  yet,  for 
this  reason,  it  is  not  presumed  that  these  companies  can  be  forced  to 
accept  a  message  for  transmission  without  first  being  paid  a  reason- 
» 

'■  "Stamcy   v.    West.   U.    Tel.    Co.,    92  =«Ayers  v.  West.  U.  Tel.  Co.,  65  X. 

Ga.  61.3.  44  Am.  St.  Eep.  95,  18  S.  E.       Y.  App.  Div.  149. 
inos. 


264  TELEGKAPII  AND  TELEPHONE   COMPANIES.  [§    273 

able  compensation  for  its  transmission,  or  a  tender  made  for  same.-'^ 
The  fixed  rates  for  the  transmission  and  delivery  having  been  paid, 
or  an  offer  having  been  made  in  legal  tender,  it  is  then  a  suflficient 
delivery  to  the  company  for  acceptance.  The  company  may  refuse, 
to  accept  a  message  until  this  requirement  has  been  performed;  but, 
if  the  agent  has  accepted  one  for  transmission  without  prepayment, 
the  company  cannot  escape  liability  for  delay,  by  evidence  that  its 
rule  required  prepayment,  in  the  absence  of  a  showing  that  the  sender 
knew  of  such  a  rule.^°  Of  course  there  may  be  exceptions  to  this 
rule,  as,  for  instance,  where  a  message  is  presented  to  a  company  with 
the  instruction  of  the  sender  to  collect  the  charges  from  the  party  to 
whom  the  message  is  addressed.  It  is  then  the  duty  of  the  company 
to  accept  the  message,  if  it  has  reasonable  grounds  to  believe  that 
the  sendee  will  pay  for  its  transmission. 

§  274.     Same  continued — failure  to  receive — damages — functions. 

When  a  telegraph  company  wilfully  refuses  to  accept  a  proper 
message  from  any  one  who  has  complied  with  all  the  reasonable  con- 
ditions demanded  by  the  company,  it  will  be  liable  for  exemplary 
damages,  although  it  will  not  be  liable  for  such  damages,  where  its 
refusal  to  transmit  arises  from  a  misunderstanding  as  to  the  nature 
and  meaning  of  the  message.^ ^  Thus,  where  a  company  refuses  to 
accept  a  message  for  transmission  because  it  had  reasons  to  believe 
that  it  was  intended  to  promote  an  illegal  purpose,  but  in  which  it 
was  mistaken ;  the  court  held  that  it  was  liable  in  damages,  but  could 
not  be  held  liable  for  exemplary  or  punitive  damages. ^^  Where  a 
message  is  properly  prepared  and  presented  and  the  company  then 
refuses  to  accept  it,  the  sender  may  enforce  the  acceptance  by  man- 
damus proceedings.^^ 

§  275.    Transmit  without  delay. 

The  next  duty  of  a  telegraph  company,  after  accepting  a  message, 
is  to  transmit  it  without  unnecessary  delay ;  ^*  and,  on  the  failure  to 

^  West.   U.   Tel.    Co.   v.   Dubois,    128  ''  Friedman  v.  Gold,  etc.,  Tel.  Co.,  32 

111.248,21    N.E.4,    15  Am.  St.  Rep.  109.  Hun     (N.  Y.)    4. 

*^  West.   U.   Tel.   Co.  v.   Cunningham,  '*A  company   will   not  be  liable  for 

14  So.  579.  failure    to   transmit    a   message   where 

*^  West.  U.  Tel.  Co.   v.  Ferguson,  57  there  is  no  Internal  Revenue  Stamp  af- 

Ind.  495,  fixed  thereto  as  required  by  law.    West. 

^'  Id.  U.  Tel.  Co.  V.  Young,  3G  So.  374. 


<^    275]  AS   TO   MESSAGES LIABILITY.  265 

lu  SO,  the  company  will  be  liable  to  any  one  who  may  be  damaged 
tiiereby.^°  One  of  the  fundamental  reasons  why  the  business  of  these 
companies  has  become  so  great,  and  that  which  induces  the  public  to 
resort  to  them  is,  that  it  is  a  means  by  which  the  business  of  the 
greatest  importance  may  be  accomplished  in  the  shortest  possible 
time.  This  being  the  case,  these  companies,  by  implication,  neces- 
sarily hold  themselves  out  to  the  public  to  use  all  diligence  in  the 
transmission  of  all  messages  intrusted  to  them.  This  does  not  mean 
however  an  immediate  transmission  at  all  times.  If  it  is  not  within 
the  power  of  the  company  to  make  an  immediate  transmission,  as 
where  it  is  prevented  from  making  such  by  the  public  enemy  or  by 
the  act  of  God,  it  would  not  be  liable  for  any  injury  caused  by  the  de- 
lay in  the  transmission.  So,  also,  if  the  delay  has  been  caused  by 
tlie  company  transmitting  the  message,  without  negligence,  in  a  cir- 
cuitous route,  ^^'  where  the  same  could  be  sent  direct,  on  the  account 
of  the  arrangement  of  its  offices,  it  would  not  be  liable.^'  And  if  it 
be  necessary  to  send  the  message  through  a  repeating  office,  sufficient 
time  must  be  given  for  other  business  at  that  office  f^  but  if  the  busi- 
ness is  such  at  the  repeating  office,  or  at  any  other  office,  as  to  re- 
quire more  than  one  operator,  and  only  one  being  in  charge  of  such 
office,  the  company  would  be  liable  for  a  delay  caused  thereby.^^  If 
the  delay  has  been  caused  by  any  undue  advantage  of  the  company 
over  the  sender,  it  will  not  be  relieved  from  any  injuries  arising  di- 


•■"  West.  U.  Tel.   Co.'  v.  Cunningham,  McPeek  v.  West.  U.  Tel  Co.,  107  Iowa 

99   Ala.   314,    14   So.   579;    Bartlett  v.  356,    78  N.  W.  83,  43"  L.  R.  A.  214,  70 

West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Am.  St.  Kep.  205;  Johnson  v.  West.  U. 

Rep.   404;    West.  U.  Tel.  Co.  v.  Jobe,  Tel.  Co.,  79  Miss.  58,  89  Am.  St.  Rep. 

6  Texas  Civ.  App.  403.    It  is  liable  for  584.  29  So.  787. 

such  damage  as  is  the  direct  and  nat-  ="Leavell  v.   West.   U.  Tel.   Co.,   116 

ural  result  of  its  failure  to  deliver  a  N.  Car.  211,  21  S.  E.  391,  27  L.  R.  A. 

message   intru^tpd    to    it   for   transmis-  843,   47   Am.    St.   Rep.   798;    West.    U. 

sion:  West.  U.  Tel.  Co.  v.  Broesche,  72  Tel.  Co.  v.  Jones,  09  Miss.  658,  13  So. 

Te.x.  654,  13  Am.  St.  Rep.  772.     It  is  471,    30   Am.   St.   Rep.   579;    West.   U. 

said  that  a  person  injured  by  the  delay  Tel.  Co.  v.  Henderson,  89  Ala.  510,  18 

in  delivering  a  message  to  him  is  not  Am.  St.  Itep.  155,  7  So.  419. 

limited  in  his  recovery  to  such  damages  '"  Beasley   v.   West.    U.    Tel.    Co..    30 

as  might  reasonably  might  have  been  Fed.   181. 

within    the    contemplation    of    the   par-  »Behm  v.  West.  U.  Tel.  Co.,  8  Bliss 

ties,  but  recovery  may  be  had  for  all  (U.  S.)    131. 

the  injurious  results  which  flow  there-  ''West.  U.  Tel.  Co.  v.  Circle.  10  Am. 

from    by    ordinary    natural    .sequence:  &   Kng.  Corp.  Cas.  010. 


266  TELEPirONE  AND  TELEGRAPH  COMPANIES.  [<§,    275 

rectly  therefrom.  As  where  the  sender's  consent  to  a  delay,  under 
a  misapprehension  induced  by  the  company's  agent,  creates  no  es- 
toppel on  his  part.""^ 

§  276.     Burden  of  evidence — delay — presumption. 

When  an  action  is  being  maintained  for  an  injury  caused  by  a  de- 
lay in  the  transmission  of  a  message,  the  burden  of  proof  is  on  the 
company  to  show  that  the  delay  was  not  caused  by  its  negligence.*^ 
It  would  be  an  unreasonable  rule  of  evidence,  to  compel  the  sender 
to  furnish  such  proof,  since,  to  do  so,  would  be  nothing  less  than  to 
deprive  him  of  his  redress  for  injuries  arising  from  such  causes.  The 
transmission  of  the  message  is  within  the  exclusive  control  of  the  com- 
pany's servants,  and  if  any  of  these  should  be  guilty  of  negligence, 
it  would  generally  be  committed  beyond  the  reach  of  the  sender,  but 
within  the  knowledge  of  the  company.  This  being  the  case,  it  is 
better  for  the  burden  of  proof  to  be  on  the  company,  when  it  may  ex- 
onerate itself  for  the  negligent  act,  rather  than  to  impose  such  proof 
on  the  sender.  In  some  instances,  a  delay  in  the  transmission  of 
messages  will  be  presumed  to  have  been  caused  by  the  company's  neg- 
ligence. Thus,  a  delay  of  ten  or  twelve  hours  in  transmission,  if  un- 
explained, will  create  a  persumption  of  negligence  on  the  part  of 
the  company,*-  and  a  delay  of  very  much  less  time  may,  under  pecu- 
liar circumstances,  raise  the  presumption  of  negligence;"*^  yet  the 
company  may  overcome  this  presumption  by  competent  evidence.** 

§  277.     Duty  to  inform  sender  when  delay  unavoidable. 

When  a  telegraph  company,  for  any  cause,  cannot  transmit  a  mes- 
sage, or  when  it  will  be  unavoidably  delayed,  it  is  the  duty  of  its 

^"West.  U.  Tel.  Co.  v.   Seffel,  71    S.  412;   35  So.  829;  West.  U.  Tel.  Co.  v. 

W.  616,  65  S.  W.  897.  Boots,  10  Tex.  Civ.  App.  540.    A  delay 

"  West.  U.  Tel.  Co.  v.  Circle,  10  Am.  of  three  days  in  the  delivery  of  a  tele- 

&  Eng.  Corp.  Cas.  610;  Pope  v.  West.  gram  has  been  held  to  be  prima  facie 

U.  Tel.  Co.,  9  III.  App.  587;  West.  U.  evidence  of  negligence  on  the  part  of 

Tel.  Co.  V.  Cooper,  71  Tex.  507,  10  Am.  the    company:    Ilarkness    v.    West.    U. 

St.  Rep.  772,  1  L.  R.  A.  728.  Tel.  Co.,  73  Iowa  190,  34  N.  W.  811, 

^^  Kendall  v.   West.   U.   Tel.   Co.,   56  5  Am.  St.  Rep.  672. 
Mo.    App.    192;    West.    U.    Tel.    Co.   v.  «  Smith  v.  West.  U.  Tel.  Co.,  57  Mo. 

Clark,  25  S.  W.  990.  App.  259. 

*»  Postal  Tel.  Co.  v.     Rhett,  33     So. 


-^  278]  AS  TO  messagp:s — liability.  2G7 

agent,  in  all  cases,  to  inform  the  sender  of  such  fact;  especially  when 
the  message  shows  on  the  face  its  importance :  when  these  facts  are 
within  the  knowledge  of  the  agent,  or  such  as  he  ought  to  know,  and 
he  fails  to  give  such  information,  this  will  be  evidence  of  jiegligence, 
although  it  may  not  be  negligence  per  se.'*'^  ]\ritchell,  C.  J.,  in  dis- 
cussing this  subject,  said :  "It  might  well  be  that  in  a  case  when  a 
message  was  delivered,  which  showed  upon  its  face  the  importance  of 
speedy  transmission,  and  other  means  of  making  the  communication 
were  unavoidable  to  the  sender,  which  might  be  resorted  to,  if  he 
was  informed  that  the  one  chosen  was  ineffectual,  or  liis  conduct 
might  otherwise  be  materially  controlled  thereby,  the  company  would 
be  bound  at  its  peril  to  ascertain  and  disclose  its  inability  to  serve 
him,  or  render  itself  liable  to  respond  in  damages."'**'  It  may  not  be 
negligence  within  itself  in  failing  to  inform  the  sender  of  the  un- 
avoidable delay  in  transmission,  but  it  would  be  unquestionably  evi- 
dence of  negligence.  "In  many  instances,  by  such  a  course,  the  dam- 
age would  be  greatly  lessened,  if  not  entirely  avoided.  A  better  ad- 
dress might  be  given,  mutual  friends  might  be  communicated  with, 
or  even  a  letter  might  reach  the  addressee.  In  any  event  the  sender 
might  be  relieved  from  great  anxiety,  and  would  know  what  to  ex- 
pect. ^Moreover,  it  would  tend  to  show  diligence  on  the  part  of  the 
company.  "^'^ 

§  278.     Must  transmit  without  error. 

After  a  telegraph  company  has  accepted  a  message  to  be  sent  over 
its  wires,  it  must  exercise  due  and  proper  care  to  transmit  it  in  thf^ 
exact  words  in  which  it  was  delivered.^^     They  are  not  common  car- 

"Fleichner  v.  Pae.  Postal  Tel.  Cable  Car.  431.  78  Ain.  St.  Rep.  668,  35  S.  E. 

Co.,  55  Fed.  738;   West.  U.  Tel.  Co.  v.  810. 

Cohen,  73  Ga.  522;   Bierhans  v.  West.  "West.   U.   Tel.   Co.   v.  Harding.   10 

U    Tel.  Co.,  8  Ind.  246;   West.  U.  Tel.  Am.  &  Eng.  Corp.  Cas.  617. 

Co.  V.  Harding,   103  Ind.  505,  3  N.  E.  *^  Hendricks  v.  West.  U.  Tel.  Co..  126 

172;  W^est.  U.  Tel.  Co.  v.  Birge-Forbes  X.   Car.  304.  78  Am.   St.  Rep.   658.  35 

Co.,  29  Tex.  Civ.   App.   526.     Compare  S.  E.  810. 

Ohio    R.,    etc.,    Co.    V.    Applewhite,    52  « Kemp  v.  West.  U.  Tol.  Co.,  28  Neb. 

Ind.   540;    Pittsburg,     etc.,   R.   Co.      v.  001,   44  N.   W.    10()4,  26  Am.   St.  Rep. 

Xuzzum,  50  Ind.  141,  19  Am.  Rep.  703;  363.  and  this  irrespective  of  the  ques- 

I.andie   v.    West.    U.   Tel.    Co.,    126    N.  tion  of   punctuality   in   their  delivery: 

West.  U.  Tel.  Co.  v.  Roundtree,  92  Ga. 


268  TELEGRAPH  AXD  TELEPHONE  COMPANIES.  [<^    278 

riers  aud  are  not,  therefore,  insurers  of  a  correct  transmission  of  mes- 
sages, but,  as  they  have  assumed  public  functions  and  solicited  public 
trade,  proper  care,  under  the  circumstances,  must  be  exercised 
in  carrying  on  their  business.  The  value  of  a  message  depends  upon 
its  correctness.  If  it  is  changed  in  any  material  part,  it  is  not  the 
same  message  as  that  delivered  for  transmission,  and  may  materially 
affect  the  rights  of  both  the  person  sending  and  the  person  receiving 
it.*^  Oftentimes  messages  sent  by  telegrams  are  of  the  most  im- 
portant class  of  news,  and  are  prepared  in  the  briefest  manner;  the 
slightest  change  or  error  made  by  the  company,  might  likely  incur 
serious  injury  or  loss.  It  is  a  further  fact  that  the  transmission  of 
these  messages  is  intrusted  to  the  exclusive  control  of  the  servants  of 
the  company — the  sender  doing  nothing  more  than  preparing  the 
message  for  transmission.  The  companies  for  these  reasons  should 
prepare  themselves  with  the  best  material  for  such  business,  and  have 
the  most  suitable,  skilled  and  competent  men  to  manage  and  operate 
their  machinery.  Telegraph  companies  are  often  confronted  with 
many  uncontrollable  hindrances:  as,  where  the  wires  are  exposed 
to  the  inference  of  strangers;  a  surcharge  of  electricity  in  the  at- 
mosphere; or  a  failure  or  an  irregularity  in  the  electrical  current, 
may  stop  communication:  and,  they  are  also  subject  to  danger  from 
accident,  malice  and  climatic  influences. ^°  In  the  early  state  of 
their  existence,  they  were  more  often  interfered  with  by  these  hin- 
drances, but  many  of  these  by  degrees  have  been  overcome  by  im- 
provements in  their  machinery.  We  can  look  back  but  a  few  years 
and  marvel  at  the  vast  improvements  which  have  been  injected  into 
this  line  of  business,  and  no  one  can  imagine  what  a  few  years  in  the 
future  will  bring  about.  It  will  be  but  a  question  of  time  when 
these  companies  will  have  made  such  vast  improvements  on  their  in- 
struments, as  will  enable  them  to  overcome  a  greater  part  of  these 


Gil,  18  S.  E.  979,  44  Am.  St.  Rep.  93 
West.  U.  Tel.  Co.  v.  Dubois,  128  111 
248,  21  N.  E.  4,  15  Am.  St.  Rep.  109: 
Pegram  v.  West.  U.  Tel.  Co.,  100  N 
Car.  28,  G  S.  E.  770,  6  Am.  St.  Rep 
557.  See  extended  notes  to  West.  U 
Tel.    Co.    V.    Blanchard,    45    Am.    Rep 


Ilyer,  1  Am.  St.  Rep.  229;  and.  Postal 
Tel.  Cable  Co.  v.  Lathrop,  181  111.  575, 
19  Am.  St.  Rep.  55,  7  L.  R.  A.  474,  54 
N.  E.  1058. 

«  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb. 
GGl,  26  Am.  St.  Rep.  363,  44  N.  W. 
1064. 


496;   West.  U.  Tel.  Co.  v.  Cooper,   10  «•  Smith  v.  West.  U.  Tel.  Co.,  83  Ky. 

Am.  St.  Rep.  784;  West.  U.  Tel.  Co.  v.       104,  4  Am.  St.  Rep.  126. 


§  279] 


AS   TO   MESSAGES LIABILITY, 


269 


hindrances,  and,  wIh'u  the  time  should  come,  they  shuuhl  be  held  as 
insurers  of  an  accurate  and  correct  transmission  of  messages. 

§  279.     Degree  of  care  in  transmission. 

While  telegraph  companies  are  not  held  liable  as  insurers;  yet,  on 
the  account  of  the  importance  and  magnitude  of  the  business  intrust- 
ed to  their  care,  the  very  greatest  degree  of  care  and  accuracy  should 
be  imjiosed  upon  them.  It  is  not  understood,  however,that  this  would 
impose  a  liability  upon  the  company  for  want  of  skill  or  knowledge 
not  reasonably  attainable  in  the  art.  iSTor  for  errors  <jr  imperfections 
which  arise  from  causes  not  within  their  control,  or  which  are  not 
capable  of  being  guarded  against.^^  The  degree  of  care  which  is 
impo^sed  on  these  companies  in  this  respect  is  very  ably  discussed  by 
the  court  of  Maine  which  will  be  found  in  the  note.''-  The  same  de- 
gree of  care  is  required  over  connecting  lines  as  over  the  receiving 
company's  lines.^^ 


^'^  Wliite  V.  West.  U.  Tel.  Co.,  14  Fed. 
710. 

"Bartlett  v.  West.  U.  Tel.  Co.,  62 
Me.  209,  16  Am.  St.  Rep.  447,  in  which 
the  court  said:  "To  require  a  degree 
of  care  and  skill  commensurate  with 
the  importance  of  the  trust  imposed,  is 
in  accordance  with  the  principles  of 
law  applicable  to  all  undertakings  of 
whatever  kind,  whether  professional, 
mechanical,  or  that  of  the  common  la- 
borer. There  is  no  reason  why  the  bus- 
iness of  sending  messages  by  telegraph 
sliould  be  made  an  exception  to  the 
general  rule.  This  requires  skill  as 
well  as  care.  If  the  work  is  difficult, 
greater  skill  is  required.  It  is  often 
necessary  to  intrust  to  this  mode  of 
communication  matters  of  great  mo- 
ment, and  therefore  the  law  requires 
great  care.  It  is  necessary  to  use  in- 
struments of  somewhat  delicate  nature 
and  accurate  adjustment,  and  there- 
fore they  must  be  so  made  as  to  be 
reasonably  suflicient  for  the  pur- 
pose. The  company,  holding  itself  out 
to  the   public   as   ready   and   willing  to 


transmit  messages  by  this  means, 
])ledges  to  that  public  the  use  of  in- 
struments proper  for  the  purpose,  and 
that  degree  of  skill  and  care  adequate 
to  accomplish  the  object  proposed.  In 
case  of  failure  in  anj-  of  these  respects, 
l!ie  company  would  undoubtedly  be  lia- 
I'le  for  the  damages  resulting.  This 
would  not  impose  any  liability  for 
want  of  skill  or  knowledge  not  reason- 
ably attamable  in  the  present  state  of 
the  art,  nor  for  errors  resulting  from 
llie  peculiar  and  unknown  condition  of 
the  atmosphere,  or  any  agency  from 
whatever  source,  Avhich  the  degree  of 
skill  and  care  spoken  of  is  insufficient 
to  guard  against  or  avoid." 

"  White  V.  West.  U.  Tel.  Co.,  14  Fed. 
710;  Smith  v.  West.  U.  Tel.  Co.,  84 
'lex.  359,  19  S.  W.  -141,  31  Am.  St. 
Hop.  59.  Compare  Falvey  v.  Georgia 
i;.,  76  Ga.  597,  2  Am.  St.  Rep.  58;  T. 
C  R.  Co.  V.  Frankenburg.  54  111.  88, 
.'.  Am.  Rep.  92;  McCarty  v.  Gulf,  etc.. 
K.  Co.,  70  Tex.  33;  and  notes  to  Wells 
V.  Thomas,  72  Am.  Dec.  230;  Lawrence 
V.    Winona,   etc.,    R.    Co.,   2   Am.    Rep. 


270  TELEGKAPH   Ai\D  TELKl'ILOAE   CO.Mi'AMES.  [^    280 

§  280.     Liability  under  statutes — all  mistakes. 

In  some  states,  there  are  statutes  which  provide  that  telegraph  com- 
panies are  liable  for  all  mistakes  and  errors  made  in  the  transmis- 
sion of  messages.^"*  While  regulations  made  in  accordance  with  these 
statutes,  are  held  to  be  reasonable,^"  it  is  claimed  that  they  are  not 
liable  for  such  mistakes  or  errors  Avhich  are  caused  bv  some  act  not 
within  the  control  of  the  company.  They  are  only  liable  for  the 
negligent  acts  of  their  servants  and  not  for  any  other.  A  statute  pro- 
viding that  these  companies  shall  transmit  and  deliver  messages  with 
"due  diligence,"  and  prescribing  a  penalty  for  failure  to  comply  with 
the  terms  of  the  statute,  relates  to  the  time  within  which  messages 
must  be  transmitted  and  delivered,  and  not  to  the  accuracy  and  cor- 
rectness in  sending  and  transmitting  them.^'"' 

§  281.     Same  continued — damages — actual — errors  in  transmission. 

There  is  a  distinction  to  be  drawn,  as  may  be  seen,  between  errors 
made  in  the  transmission  of  a  message,  and  delays  made  in  the  de- 
livery of  same,  wherein  the  penalty  can  only  be  inflicted  on  a  failure 
to  promptly  deliver  the  message.  These  statutory  provisions,  have 
no  effect  whatever  on  errors  made  in  the  transmission ;  where  such 
errors  are  made,  the  injured  party  is  entitled  to  all  actual  damages 
arising  thereby,  irrespective  of  the  question  of  punctuality  in  their 
delivery.  ^''^  There  must,  however,  be  actual  damages  caused  by  the 
error  in  the  transmission,  othei*wise,  a  recovery  could  not  be  had. 
Thus,  if  through  a  mistake  in  the  transmission  of  a  telegram,  the 
owner  of  property  is  induced  to  sell  it  for.  its  then  market  value,  he 
suffers  no  damage  and  cannot  recover  any ;  although,  when  the  prop- 
erty subsequently  advanced  in  value,  he  purchased  a  part  thereof  at 
the  advanced  rate:^^  and  again,  if  a  broker  is  directed  by  telegraph 

141;  Gray  v.  Jackson,  12  Am.  Rep.  40;  061,   26   Am.   St.   Eoj).    30.3,   44   N.   W. 

Hill  V.  Syracuse,  etc.,  R.  Co.,  29  Am.  1064. 

Rep.    166;    Nashville,  etc.,     R.   Co.     v.  "West.  U.  Tel.  Co.  v.  Roiindtree,  02 

Spraybui-.y,  35  Am.  Rep.  708;  Hadd  v.  Ha.  611,  44  Am.  St.  Rep.  93,  18  S.  E. 

United   States      E.\press   Co.,   36     Am.  979. 

Rep.    761;    Louisville,    etc.,    R.    Co.    v.  ■•"Id. 

Weaver,  42  Am.  Rep.  664.  ^' Id. 

"  Kejp.p  V.  West.  U.  IVl.  Co.,  28  Xeb.  =»  Pepper  v.   Telegraph   Co..  87   Toiin. 

5.54,   11  S.  W.  783,  4  L.  R.  A.  000,   10 


<^    282]  AS   TO    MESSAGES LIAUILITV,  271 

to  sell  cotton  lor  the  sender  of  the  message  on  the  latter's  account,  at 
a  designated  price,  and  the  company  makes  a  mistake  in  sending  the 
telegram,  whereby  the  sender  contracts  to  sell  for  a  less  price,  the 
latter  is  under  no  obligation  to  deliver  the  cotton,  but,  if  he  does  so, 
constrained  by  a  desire  to  maintain  his  business  credit,  or  other  rea- 
sons, he  cannot  recover  from  the  telegraph  company,  for  his  payment 
uf  the  lo?s  i^;  ])ur('ly  voluntary  and  aratnitous.^^ 

§  282.     Duty  to  deliver — addressee — in  general. 

kSubject  to  reasonable  regulations,  as  to  delivery  limits,  telegraph 
companies  are  bound  to  deliver  all  messages  sufficiently  addressed, 
when  this  can  be  done  by  the  exercise  of  reasonable  diligence.®*'  It 
is  seldom  these  companies  are  resorted  to  for  the  purpose  of  transmit- 
ting news  unless  the  same  pertains  to  business  of  the  greatest  im- 
portance, and  necessarily  to  be  accomplished  in  the  shortest  possible 
time;  since,  if  it  were  otherwise,  the  postal  system,  w-hich  is  of 
much  less  expense  and  in  which  there  is  a  greater  reliance  of  secrecy, 
would  be  used  as  the  means  of  accomplishing  this  purpose.^^  Tt  is 
just  as  great  a  duty  and  is  just  as  binding  on  a  telegraph  company 
to  use  due  diligence  in  delivering  a  telegram  to  the  addressee,  or  one 
in  whose  care  it  is  directed,  as  that  to  be  exercised  in  its  transmis- 

Am.  St.  Pvop.  699;   Persall  v.  West.  U.  W.    903,    71    Am.    St.   Rep.    682;    West 

Tel.  Co.,  124  N.  Y-  256,  21  Am.  St.  Rep,  U.  Tel.  Co.  v.  Flint  River  Lumber  Co.. 

662;    West.   V.   Tel.    Co.  v.   Stevenson,  114  Ga.  576,  40  S.  E.  815,  88  Am.  St. 

128  Pa.  St.  442,  18  Atl.  441,  5  L.  R.  A.  Rep.  36;  Hughes  v.  West.  U.  Tel.  Co.. 

515,    15  Am.    St.   Rep.   687;    West.   U.  114  N.  Car.  70,  41  Am.  St.  Rep.  782, 

Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  19  S.  E.  100. 

E.  4,   15  Am.  St.  Rep.   109;   West.  U.  =>"  Shingleur  v.  West.  U.  Tel.  Co.,  72 

Tel.  Co.  V.  Edsall.  74  Tex.  329,  15  Am.  :\Iiss.    1030,    18    So.    425.    44    Am.    St. 

St.   Rep.   833:    Alexander   v.   West.   U.  Rep.  93,  30  L.  R.  A.  660. 

Tel.  Co.,  66  Miss.  161,  5  So.  397,  3  L.  «•>  West.    U.    Tel.    Co.   v.    Cougar,    84 

R.  A.   71,   14  Am.   St.   Rep.  556;   Reed  Ind.  176;   West.  U.  Tel.  Co.  v.  Cooper. 

V.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  71   Tex.   507,    10  Am.   St.  Rep.  772,    1 

S.  W.  904,  34  L.  R.  A.  492,  58  Am.  St.  L.   R.   A.   728;    Pope  v.   West.   U.   Tel. 

Rep.  609:  Wost.  t^.  Tel.  Co.  v.  Round-  Co.,    9    111.    App.    587;    West.    U.    Tel. 

tree,  92  Ga.  611,   18  S.  E.  979,  44  Am.  Co.  v.  Lindley,  62  Ind.  371. 

St.  Rep.  93;  Shingleur  v.  West.  U.  Tel.  "MYest.   U.    Tel.    Co.    v.      Adams,   75 

Co..  72  Miss.  1030,  18  So.  425,  30  L.  R.  Tex.  531.  12  S.  W.  857.  16  Am.  St.  Rep. 

A.  444.   48  Am.  St.  Rop.  604 :  West.  U.  020,  6  L.  R.  A.  844. 

Tel.    Co.  v.    ]?oals,   56   Xeh.   415,   76   X. 


272  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§   2S2 

siou  f-  since,  a  mere  transmission  from  one  station  to  another  would 
avail  nothing.  It  is  part  of  the  contract  whereby  the  company  has 
undertaken  to  transmit  the  messages  and  therefore  just  as  essential 
as  that  of  the  transmission  itself  ;*'^  since,  a  failure  of  the  company 
to  comply  with  this  part  of  the  contract,  would  bring  about  the 
same  results,  as  even  a  complete  failure  to  transmit  the  message.^* 
To  perform  this  part  of  their  duty,  they  must  keep  a  sufficient  num- 
ber of  messenger  boys  at  their  stations  to  make  such  deliveries,  and, 
they  cannot  escape  this  duty  by  showing  that  the  business  of  the 
office  at  the  receiving  station  was  not  sufficient  to  justify  the  em- 
ployment of  an  additional  agent  to  make  delivery.*'^ 

§  283.     Excuse   for   non-delivery. 

There  are  few  instances  where  telegraph  companies  are  excused 
for  not  making  a  prompt  delivery,  since  it  is  presumed  that,  when 
they  accept  a  message  for  transmission,  it  is  within  their  power  to 
carry  out  the  obligations  of  their  contracts  to  promptly  deliver. 
There  may,  however,  be  some  instances,  where  they  are  excusable  for 
not  making  a  prompt  or  even  for  making  any  delivery  at  all.  For  in- 
stance, where  the  address  of  the  sendee  is  not  sufficiently  given  in  that 
his  name  is  not  correctly  written  or  his  street  number  is  improperly 
given,  or,  where  the  charges  for  transmission  are  not  given  or  ten- 
dered either  by  the  sender  or  sendee,  or,  when  the  message  is  trans- 
mitted at  a  time,  as  at  night,  when  the  receiving  office  has  no  mes- 
senger boy — and  it  is  not  the  usual  custom  to  have  one  at  that  time, 
in  this  latter  case,  however,  the  message  should  be  delivered  early  the 
next  morning.  AVhere  the  sendee  is  quarantined,  on  account  of  some 
contagious  disease,  or,  where  he  cannot  be  found  after  diligent  in- 
quiry for  his  whereabouts,  or,  where  he  lives  unreasonably  far  be- 
yond the  free  delivery  limits  and  the  charges  for  such  delivery  have 
not  been  prepaid,  the  company  would  be  excused  for  a  non-delivery. 

"MVest.  U.  Tel.  Co.  v.  ]\Ioore,  12  Tnd.  "*  Hendricks  v.  West.  U.  Tel.  Co.,  126 

App.  136,  ,54  Am.  St.  Rop.  .575.  X.   Car.  304,  78  Am.   St.  Rep.   658,  35 

•"West.    U.    Tel.    Co.    v.    Gouger,    84  S.  E.  543. 

Inrl.   176;  West.  U.  Tel.  Co.  v.  Adams,  «=  West.  U.  Tel.  Co.  v.  Henderson,  89 

75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Ala.   510,  7   So.   419,   18   Am.   St.  Rep. 

Rop.  920.  0  L.  R.  A.  844.  148.     Compare  Bobm   v.  W^est.  U.  Tel. 

Co..  S    Bi-;s.    (U.   S.)    131. 


<^    284]  AS  TO  MESSAGES LIABILITY.  273 

§  284.     Same  continued — not  excused  for. 

A  telegraph  company  cannot  be  excused  for  liabilities  caused  by  a 
delay  in  delivering  a  message  by  proof  that  it  was  not  the  custom  of 
the  physician,  the  sendee,  to  make  professional  calls  at  a  distance 
without  prepayment  or  guaranteed  payment  of  his  charges  i"**  or. 
that  the  message  relates  to  a  sale  of  ''futures,"  unless  it  is  made  a 
crime  or  tort  to  speculate  in  "'futures ;"  or, would  subject  the  company 
to  indictment  or  civil  action  to  receive  and  transmit  a  message  in 
relation  thereto  f^  or,  that  the  contract  for  its  transmission  and  deliv- 
ery was  entered  into  on  Sunday,  if  the  emergency  to  which  the  tele- 
gram related  was  the  death  and  burial  of  the  father  of  the  person  to 
whom  it  was  addressed. °^  A  stipulation  on  the  company's  blank,  re- 
quiring messages  to  be  repeated,  is  no  defense  to  an  action  brought 
to  recover  damages  for  a  delay;  or,  for  failure  in  delivering  a  mes- 
sage, where  the  same  has  not  been  repeated  f^  nor,  does  a  regulation 
requiring  the  prepayment  of  special  delivery  charges  before  transmis- 
sion, for  a  telegram  to  be  delivered  beyond  free  delivery  limits,  ex- 
cuse delay  in  delivery  or  non-delivery  of  a  telegram,  unless  the  send- 
er knows,  or  is  informed  that  the  residence  of  the  sendee  is  beyond 
the  free  delivery  limits,  and  of  the  amount  of  the  special  delivery 
charges.'^'^  A  telegraph  company  will  not  be  excused  for  non-delivery 
on  the  gTound  that  the  sender  did  not  inform  the  operator  of  its  im- 
portance, when  they  fail  to  show  that,  if  the  operator  had  received 
such  infonnation,  he  would  have  changed  the  method  of  the  trans- 
mission, or  the  time  in  which  it  would  have  been  sent,  the  agency 
employed,  the  price  demanded  therefor,  or  the  skill  used  in  the 
transmission:"'  nor.  will  it  be  excused  on  the  o-vonnd,  that  the  busi- 


""West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.    32.    30    Am.    St.    Rep.    23,    9    So. 

Ala.   510,  7   So.  419,    18   Am.   St.   Rep.  414. 

148.  "•West.   U.   Tel.   Co.   v.   Broische,   72 

"Gray  v.  West.  U.  Tel.  Co..  87  Ga.  Tox.  654,  13  Am.  St.  Rep.  843. 

350,  13  S.  E.  562,  14  L.  R.  A.  95,  27  '"West.  U.  Tel.  Co.  v.  Moore,  12  Ind. 

Am.  St.  Rep.  259:   Smith  v.  West.  U.  App.  136,  54  Am.  St.  Rep.  515. 

Tel.  Co.,  84  Ky.  664,  2  S.  \\'.  883.  •'  Hendricks  v.  West.  U.  Tel.  Co..  126 

*West.    U.    Tel.    Co.    V.    Wilson,    93  X.  Car.  304,  35   S.  E.  543,  78  Am.  St. 

T.  &  T.— 18 


274:  TELEGRAPH    AND   TELEPHONE    COMPANIES.  [<§    284 

iiess  of  the  office  M^here  it  was  received  was  not  sufficient  to  justify 
the  employment  of  a  messenger."-  They  cannot  be  excused  for  a 
delay  by  contending  that  the  sender  should  have  sent  the  message 
sooner,  instead  of  waiting  until  the  last  moment  ;'^^  nor  by  setting  up 
the  fact  that  the  message  as  offered  was  not  in  writing.'^'* 

§  285.     Duty  to  inform  sender  of  non-delivery. 

As  a  general  rule,  it  is  not  the  duty  of  the  telegTaph  company  to 
inform  the  sender  that  the  telegram  cannot  be  delivered,  or  the 
sendee  cannot  be  found,' ^  but  when  it  is  convenient  or  practical  for 
the  company  t©  impart  such  information,  especially  where  the  mes- 
sage shows  on  its  face  its  importance,  it  should  do  so;  otherwise,  the 
company  will  be  liable  for  all  damages  directly  arising  therefrom. 
Thus,  where  a  mother  telegraphs  to  a  friend  to  meet  the  remains  of 
her  child  at  a  certain  place,  and  she  has  been  assured  of  the  fact  that 
the  same  was  delivered,  but  in  fact  it  had  not  been,  and  the  company 
could  have  easily  informed  her  of  the  non-delivery,  it  will  be  liable 
for  all  damages  caused  by  her  accompanying  the  remains  to  this  place 
by  railroad  without  giving  her  an  opportunity  of  making  other  ar- 
rangements.'^°  It  is  not  negligence  yer  se  to  fail  to  disclose  such  in- 
formation to  the  sender,  but  it  is  an  evidence  of  negligence.'^'^ 

§  286.    To  whom  made — delivery. 

After  a  telegraph  company  has  accei3ted  and  transmitted  a  mes- 
sage, it  is  under  prima  facie  obligations  to  deliver  the  message  to  the 
sendee*^^  in  person,  unless  other  arrangements  have  been  made,  and,-  it 

Eep.  658;    West.  U.   Tel.   Co.  v.  Hyde  ^"Hendricks  v.  West.  U.  Tel.  Co.,  126 

Bros.,   16  Am.  &  Eng.  Corp.  Cas.  232.  N.   C.   304,   35   S.    E.   543,   78   Am.   St. 

'2  West.  U.  Tel.  Co.  v.  Henderson,  89  Eep.  658;  Landie  v.  West.  U.  Tel.  Co.. 

Ala.   510,   18  Am.   St.   Rep.   148,   9   So.  126   N.   C.   431,   78   Am.   St.   Rep.   658, 

414.  35  S.  E.   810. 

■^Pope  V.  West.  U.  Tel.  Co.,  14  111.  "Id. 

App.  531;  West.  U.  Tel.  Co.  v.  Bruner,  "West.    U.   Tel.    Co.   v.    Mitchell,    91 

19  S.  W.  149.  Tex.   454,   44   S.   W.   274,   40  L.   R.   A. 

■*West.  U.  Tel.     Co.  v.  Wilson,     93  209,   06  Am.   St.   Rep.   906;    West.   U. 

Ala.    32,   &   So.    414,   30   Am.    St.   Rep.  Tel.  Co.  v.  Moseley,  28  Tex.  Civ.  App. 

23.  562,  67  &.  W.  1059;  West.  U.  Tel.  Co. 

"West.  U.  Tel.  Co.  v.  Davis,  51   S.  v.  DeJarles,  8  Tex.  Civ.  App.    109,  27 

W.  258.  S.  W.  792. 


1^    287]  AS   TO   MESSAGES LIABILITY,  275 

will  be  liable  for  any  injury  caused  by  such  breach  of  duty.  Arrange- 
ments may  be  made  between  the  company  and  the  party  to  whom  the 
messages  are  sent  by  which  a  delivery  to  some  third  party  would  re- 
lieve the  former  of  further  duty."^"  The  sender  could  not  object  to 
such  arrangements ;  for  a  delivery  of  a  message  which  would  be  good 
in  law  as  between  the  addressee  and  the  company,  is  good  as  between 
the  sender  and  the  company.^''  A  party  may  instruct  the  company 
to  leave  all  messages  at  his  place  of  business,  and  a  delivery  to  such 
place  would  be  a  sufficient  delivery  f^  or,  the  addressee  may  make  the 
company's  messenger  his  agent,  so  that  he  could  not  hold  the  com- 
pany for  the  messenger's  mistakes.^-  But  in  order  to  relieve  the 
company  of  any  responsibility,  the  arrangements  to  leave  the  mes- 
sage with  some  third  party,  must  be  made  by  special  agreements  be- 
tween the  company  and  the  party  to  whom  the  messages  are  ad- 
dressed ;  and,  generally  the  same  must  be  in  writing,  as  a  mere  ver- 
bal instruction  to  the  company's  messenger  at  some  place  other 
than  at  its  office  would  not  be  sufficients^ 

§  287.     Delivery  to  wife. 

Is  a  delivery  of  a  message  to  a  wife  sufficient  ?  In  answering  this 
question,  it  is  necessary  to  consider  the  circumstances  in  each  parti- 
cular case.  Generally  speaking,  a  delivery  to  a  wife  is  not  per  se 
sufficient  as  matter  of  law.^"^  The  wife,  as  such,  is  not  in  law  the 
general  agent  of  her  husband. ^^  If  the  husband  should  be  absent 
from  home,  the  wife  may  be  the  proper  party  to  whom  the  message 
should  be  delivered,  for,  she  is  the  most  likely  of  all  persons  in  the 
world  to  know  of  her  husband's  whereabouts,  and  thus  be  enabled  to 

••Thompson  v.  West.  U.  Tel.  Co.,   10  <«  Norman   v.    West.    U.   Tel.   Co..   31 

Tex.   Civ.   App.    120,   30    S.    W.     250;  Wash.  577. 

West.  U.  Tel.   Co.   v.   Pearce,   95  Tex.  «^  Given  v.  ^^■est.  U.  Tel.  Co..  24  Fed. 

578,  68  S.  W.  771,  reversing  67  S.  W.  119. 

920,  and  distinguishing    West.  U.    Tel.  "West.    U.   Tel.   Co.   v.   :\Iitcliell,   91 

Co.   v.   Young,  77   Tex.   245,    13   S.   W.  Tex.  454,  66  Am.   St.   Rep.   906.  40  L. 

985,  19  Am.  St.  Rep.  751.  R.    A.      209;    West.      U.    Tel.    Co.     v. 

«•  Norman  v.    West.   U.   Tel.   Co.,   31  Moseley,  28  Tex.  Civ.  App.  562. 

Wash.  577.  "West.   U.   Tel.  Co.  v.   Mitchell,   91 

»^West.  U.  Tel.     Co.  v.   Woods,     56  Tex.   454,   44   S.   W.   274,   66   Am.    St. 

Kan.  731,  44  Pac.  1093.  Rep.  90G,  40  L.  R.  A.  209. 


276  TELEGRAPH   AXD  TELEPHONE  COMPA>:iES.  [<^    287 

send  the  message  to  him  immediately/**^'  And  the  husband,  in  case 
of  his  absence  from  home,  may  be  estopped  from  denying  the  rights 
of  his  wife  in  accepting  a  message  for  him.  Thus,  if  she  has  been  at 
the  head  of  his  business,  about  which  the  message  concerns,  or,  if  it 
has  been  the  custom  for  the  messages  to  be  delivered  to  her  in  his  ab- 
sence, the  company,  under  such  circumstances,  would  be  justified  in 
delivering  the  message  to  her :  but  even  then,  if  the  message  has  im- 
portance on  its  face,  the  company  would  not  be  relieved  from  its 
duty  to  deliver  to  the  addressee  until  after  having  made  diligent 
search  and  inquiry  for  him.  The  reason  of  this,  is,  that  the  business 
about  which  the  message  pertains,  may  be  different  from  that  over 
which  the  wife  may  have  control,  and  about  which  she  may  have  any 
knowledge.  While  it  may  be  likely  that  the  wife  would  know  of  her 
husband's  whereabouts,  in  a  general  way,  when  absent  from  his  home 
town,  yet  it  is  not  possible  that  she  has  been  informed  of  all  of  his 
business  affairs.  So  the  contents  of  a  message  may  be  concerning 
business  of  great  importance  to  him  and  on  which  he  would  act  im- 
mediately, but  if  delivered  to  his  wife,  she  might  not,  for  the  above 
reason,  notify  him  immediately  of  the  contents, whereby  he  would 
be  injured  by  her  negligence. ^'^  It  is,  therefore,  better  to  impose  the 
duty  upon  the  telegraph  company  to  deliver  messages  to  the  addressee 
in  person,  especially  where  it  shows  importance  on  its  face ;  or.  when 
it  is  about  business  of  which  the  wife  has  no  knowledge;  and  this 
duty  does  not  cease  until  the  company  has  made  diligent  inquiries 
for  the  addressee. 

§  288.     Delivery  to  hotel  clerk — not  sufficient. 

It  has  been  held  that  when  a  telegraph  company  has  delivered,  to 
a  clerk  of  a  hotel,  a  message  addressed  to  one  of  the  guests  or  board- 
ers in  his  absence  from  his  place  of  business,  and  the  same  is  receipt- 
ed by  the  clerk,  that  the  company  has  fulfilled  its  duties.  The  ground 
on  which  this  reason  was  based,  was,  that  it  was  one  of  the  implied 
'luties  of  a  hotel  clerk  to  receive  and  accept  all  messages  addressed  to 
their  guests  or  boarders  in  their  absence.^^     But  there  is  a  later  opin- 

^  Given  v.  West.  U.  Tel.  Co.,  24  Fed.  ^  West.    U.    Tel.    Co.    v.    Trissal,    98 

119.  Irid.  560. 

''Id. 


§    289j  AS  TO   MESSAGKS LIAIULITY.  -11 

ion — and  u  bctUr  uiu-  we  think — uliicli  hokls  to  the  fontrarv.  In 
this  case  the  court,  said:  "The  (iue>ri<iii  presented  is  whetlier  or  not 
the  mere  rehition  of  hotelkeeper  and  lodger  and  boarder  creates,  in 
law,  an  authority  in  the  former  or  his  clerk  to  receive  telegrams  ad- 
dressed to  the  latter.  It  must  be  answered  in  the  negative,  since  then- 
is  no  evidence  stated  from  which  it  might  be  inferred  as  a  fact  thai 
Cobb  had  constituted  the  clerk  of  the  hotel  his  agent  or  servant  for 
r^uch  ])urpo?es,  there  is  nothing  to  be  considered  but  the  fact  that  he 
boarded  and  lodged  at  the  hotel.  If  such  an  authority  arose  from 
that  fact  alone,  it  could  only  be  because  the  j^erformance  of  such  ser- 
vices by  the  keeper  of  the  hotel  was  among  the  duties  imposed  on 
him  by  law  toward  those  so  boarding  with  him.  Should  it  be  assumed 
that  the  full  relation  of  innkeeper  and  guest  existed  (which  does  not 
appear), and  that  all  of  the  duties  arising  from  it  rested  on  the  keeper 
of  this  hotel,  we  know  of  no  authority  that  would  include  among 
them  that  of  receiving  and  assuming  the  responsibility  of  safely  de- 
livering telegrams.  We  can  see  no  reason  why  such  a  duty  would  ex- 
ist, if  not  voluntarily  assumed,  any  more  than  that  of  receiving  other 
notices  or  transacting  other  business  for  the  boarder."  ^^  Of  course 
if  it  has  been  the  custom  to  deliver  all  messages  to  a  hotel  clerk  and 
a  special  arrangement  to  that  effect  has  been  made  between  the  lat- 
ter and  guest  or  hoai-der,  then  a  delivery  to  the  clerk  will  be  suffi- 
cient. 

§  289.     Where  two  parties  have  same  name — delivery  to  one. 

It  may  occasionally  happen,  that  there  are  two  parties  at  the  place 
the  message  is  sent,  having  the  same  name  as  that  to  w'hich  the  mes- 
sage is  addressed.  Under  such  cireunistances.  has  the  company  per- 
formed its  duty  when  it  has  delivered  the  message  to  one  of  these 
parties?  The  answer  to  this  question  rests  wholly  and  entirely  upon 
the  fact  as  to  whether  or  not  the  company  has  any  knowledge,  what- 
ever, derived  from  any  source,  of  the  real  party  addressed.  Thus, 
if  the  comjiany  has  been  conducting  a  communication  prior  thereto 
for  one  of  those  parties,  or,  if  the  telegTam  is  in  reference  to  the  busi- 
ness, occuiiation  or  standing  of  one  of  these  parties,  or,  if  one  of  these 
parties,  to  wliom   iho  message  may  be  delivered  ascertains  the  fact 

^MVest.   I'.  Tv\.  Co.  V.  Ci>bb,  05  Tox.  !>3    Am.    St.    Rop.    SC.-i.   .38   L.   R.    A. 

333,  C7  S.  W.  87.  O'-'S. 


278  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [^    289 

after  reading  it  that  he  is  not  the  real  addressee  and  informs  the  mes- 
senger or  operator  of  this  fact ;  or,  if  there  is  any  other  means  by 
which  the  company  may  be  enlightened  as  to  who  the  real  addressee 
is,  it  will  not  bo  relieved  from  liability  until  the  message  shall  have 
been  delivered  to  him,  or  good  reasons  shown  for  not  doing  so.^*^  If, 
on  the  other  hand,  the  company  has  no  means  of  ascertaining  which 
of  the  two  parties  is  the  real  addressee,  a  delivery  to  one  is  suffic- 
ient. 

§  290.     In  care  o£  another. 

When  a  message  is  addressed  to  one  party  in  care  of  another,  the 
company  has  performed  its  duty  when  it  delivers  the  message  to  the 
party  in  whose  care  it  is  directed.  The  telegraph  company  contracts 
to  deliver  the  message  to  the  party  in  whose  care  it  is  directed  and  not 
to  the  addressee ;  and  when  it  has  performed  this  duty,  its  liability 
ceases.^  ^  Such  delivery  is  sufficient  although  no  effort  has  been  made 
to  find  the  addressee.^^  And  when  the  address  is  in  care  of  a  railroad 
company  at  a  certain  place,  a  delivery  to  its  agent  there  is  sufficient.^"^ 
It  has  further  been  held  that  a  delivery  to  the  party,  in  whose  care 
it  is  sent,  is  sufficient  although  he  refuses  to  accept  the  message;^'* 
but  we  think  a  better  holding  is,  that  when  this  party  refuses  to  ac- 
cept the, message  and  the  company  knows  of  the  real  addressee's 
whereabouts,  it  should  make  reasonable  efforts  to  deliver  the  message 
to  him,  especially  when  the  message  shows  importance  on  its  face.^^ 
If  the  person,  in  whose  care  the  message  is  sent,  cannot  be  found,  it  is 
the  duty  of  the  company  to  make  diligent  search  for  the  party  addres- 
sed ;  ^®  in  order  to  entirely  relieve  the  company  it  would  be    a   good 

••Shenill  v.  West.  U.  Tel.  Co.,   1T6  "^'West.  U.  Tel.     Co.  v.  Terrell,     10 

N.  C.  656,  21  S.  E.  400.  Tex.  Civ.  App.  60,  30  S.  W.  70. 

«Lefler  v.  West.  U.  Tel.  Co.,  131  X.  ^^  Leflgj.  y    v^^gst.  U.  Tel.  Co.,  131  N. 

C.  355,  42  S.  E.     819,     59     L.    R.    A.  Car.   355,   42   S.   E.   819,   59   L.   R.  A. 

477;    West.   U.   Tel.   Co.   v.   Young.   77  477. 

Tex.    245,    13    S.    W.    985.    19   Am.    St.  »*  West.  U.  Tel.  Co.  v.  Thompson,  31 

Rep.  751;  West.  U.  Tel.  Co.  v.  Thomp-  S.  W.  318. 

son,  31   S.  W.   318;   West.  U.   Tel.   Co.  »^  Hudson    v.    Postal   Tel.    Cable    Co., 

V.  Houghton,  82  Tex.  561,17  S.  W.  846,  132  N.  C.  460,  43  S.  E.  943. 

27  Am.  St.  Rep.  918,  15  L.  R.  A.  129n;  ««West.  U.  Tel.  Co.  v.  Houghton,  82 

West.  U.  Tel.  Co.  v.  Elliott,  7  Tex.  Civ.  Tex.   561,   17   S.  W.  846,   15  L.  R.  A. 

App.  482,  27  S.  W.  219.  129n,  27  Am.  St.  Rep.  918;   West.  U. 

Tel.  Co.  V.  Jackson,  19  Tex.  Civ.  App. 
273,  46  S.  W.  279. 


§    291]  AS  TO   MESSAGES LIABILITY.  279 

plaii  for  the  sciider  to  be  notified  of  this  fact;  and  yet,  it  is  not  ;i 
necessary  duty  to  do  this,  unless  the  same  is  practicable.  An  agree- 
ment may  be  made  between  either  the  sender  or  addressee  and  the 
company's  operator,  to  deliver  the  message  to  a  certain  person  in  a 
certain  manner,  and,  when  the  company  has  complied  with  this 
agreement,  it  will  be  relieved  from  further  responsibility.^'^  But 
whatever  arrangements  this  third  party  may  have  made  with  the 
company  with  respect  to  the  message  addressed  to  him,  will  not  be 
binding  \vith  respect  to  the  messages  addressed  in  his  care.®*  Thus, 
if  there  is  an  arrangement  made  between  the  company  and  the  third 
])arty  whereby  all  messages  may  be  delivered  to  him  by  telephone, 
this  does  not  mean  that  messages  sent  in  his  care  may  be  delivered  in 
the  same  manner,  but,  in  such  cases,  it  is  the  duty  of  the  company  to 
deliver  to  him  in  person  a  written  copy  of  the  telegram.^^  The  rea- 
son of  this  rule  is  very  clear.  When  a  message  is  addressed  to  this 
party  and  is  delivered  to  him  over  a  telephone  or  by  other  similar 
means,  by  an  agreement  to  that  effect,  it  has  reached  its  destination 
and  he  is  in  a  position  to  undertand  its  contents  and  may  act  on 
it  as  he  may  see  fit ;  but,  in  the  other  instance,  where  he  is  the  party 
in  whose  care  it  is  addressed,  he  is  not  a  principal  and  may  not  be  in 
a  position  to  comprehend  its  meaning  nor  understand  it  sufliciently 
to  enable  him  to  redeliver  it  to  the  addressee  correctly  and  promptly. 
He  should  have  a  written  copy  delivered  to  him  by  the  company  in 
order  that  he  may  deliver  to  the  real  addressee  the  same  identical 
message  received  by  him. 

§  291.     To  authorized  agent. 

A  delivery  will  be  sufficient,  if  it  is  made  to  a  clerk  of  a  hotel 
of  which  the  addressee  is  a  guest  or  boarder ;  or,  to  the  wife  of  the 
addressee ;  or,  a  member  of  a  firm  or"  corporation ;  or,  to  any  other 
party,  who  is  authorized  to  act  as  agent  in  receiving  messages.  But, 
in  order  for  the  company  to  be  relieved  from  any  liability,  the  mes- 
sage   must   be     delivered     to     that     party.     Thus,     where     a     mes- 

»■  I'liompsou  V.  West.  U.  Tel.  Co..  10  «' West.  U.  Tel.  Co.  v.  Pearce,  05  Trx. 

Tex.  Civ.  App.  120,  30  S.  W.  250.  •)78.  fiS  S.  ^Y.  771. 

»»Xorman   v.    West.   U.   Tel.    Co.,   31 

^\•asll.   577. 


2S0  TELEGRAPH  AND   TELEPHONE   COMPANIES.  [<^    291 

sage  was  addressed  to  -T.  W.  Pearsall  &  Co.,"  but  the  com- 
pany delivered  it  in  an  envelope  addressed  ''T.  W.  Pearsall,"  a 
member  of  the  finn  of  T.  W.  Pearsall  &  Co.,  it  was  considered  at  the 
office  of  T.  W.  Pearsall  &  Co.,  as  Mr.  Pearsall's  private 
mail  and  was  not  opened  until  his  arrival.  It  was  an  important  mes- 
sage requiring  immediate  attention,  and  would  have  been  attended 
to  promptly  had  it  been  addressed  to  the  firm  instead  of  to  Mr.  Pear- 
sall personally.  In  consequence  of  the  delay  thus  occasioned,  the 
plaintiff  suffered  damage  for  which  it  was  held  that  he  could  re- 
cover of  the  company.  ^^°  It  is  not  necessary,  in  every  instance,  to  au- 
thorize anyone  to  act  as  agent  for  the  party  addressed,  but  if  ther'! 
is  shown  sufficient  proof  that  the  addressee  cannot  be  found  after 
diligent  search,there  is  an  implied  agency  existing  between  the  sender 
and  some  one  closely  allied  in  the  sendee's  business  or  social  affairs 
after  the  former  has  been  notified  of  this  fact ;  as  wliere  the  telegraph 
company  telephoned  to  the  addressee's  place  of  business  and  learning 
that  he  was  out  of  town  for  several  days,  caused  the  message  to  be 
delivered  to  his  wife  at  his  residence,  and  then  informed  the  sender 
of  what  had  been  done,  it  was  held  that  this  was  a  sufficient  deliv- 
ery.'"' 

§  292.     Manner  of  delivery — written  copy. 

It  is  incumbent  wpon  a  telegraph  company,  as  one  of  its  essen- 
tial duties,  to  deliver  to  the  addressee  a  written  copy  of  the  tclegi-am. 
This  is  always  the  best  means  by  which  the  exact  words  of  the  mes- 
sage may  be  delivered,  in  order  that  the  addressee  may  act  thereon. 
It  would  be  very  difficult  for  operators  or  messengers  to  understand 
and  remember  the  contents  of  all  messages  received  by  them  during 
their  daily  course  of  business.  Their  minds  being  taxed  with  other 
business,  it  would  be  impossible  for  them  to  remember  exactly  the 
wording  of  any  particular  message,  especially  where  they  are  not  fur- 
ther interested  in  it  than  that  of  receiving  it  as  all  other ;  and  when 
they  have  no  knowledge — and  it  is  presumed  that  they  have  none — 
of  the  business  about  which  the  message  is  sent,  they  surely  could 

'""Persall   v.   West.    U.   Tel.   Co.,     44  '"' Civon  v.  West.  V.  Tol.  Co..  24  Fed. 

Hun    (N.  Y.)    .532;    affirmed  124  N.  Y.       US. 
2.56,  21   Am.  St.  Rep.  002. 


<^    293]  Aa   TU   MESSAGES ElAlilElTY.  281 

not  understand  it  us  well  as  the  party  to  wlium  it  was  addressed.  For 
these  reasons,  the  best  means  of  delivering  the  exact  words  of  a  mes- 
sage is  by  delivering  a  written  copy  of  the  message.  Furthermore, 
the  sendee  having  this  written  copy  before  him  is  much  more  capable 
of  advising  himself  liow  to  act  upon  same.  By  having  a  writ- 
ten copy  of  the  telegram,  the  errors  or  the  inaccuracies,  which  may 
be  made  in  the  transmission,  could  be  shown  more  easily  by  com- 
paring this  copy  with  the  one  delivered  to  the  company  for  trans- 
mission.^'^- It  it  true  that  the  sendee  may  waive  this  duty  of  the 
company,  as  by  granting  it  the  right  to  deliver  the  message  over  a 
telephone  line;^"^  but  none  save  messages  addressed  to  the  sendee 
could  be  waived.  If  it  were  only  delivered  to  him  in  care  of  another 
he  6ould  not  waive  this  duty,  but  the  same  would  have  to  be  delivered 
in  writing. ^"^^  When  telegi-ams  are  addressed  to  him  and  delivered 
by  telephone,  the  messenger  acts  as  his  and  not  the  company's  agent 
in  that  particular  business. 

§  293.     No  duty  to  forward  messages. 

A  telegraph  company  is  under  no  obligation  to  forward  a  tele- 
gram to  a  party  who  has  moved  into  another  locality,  but  this  duty 
may  be  assumed  by  an  agreement,  to  that  affect,  entered  into  be- 
tween the  company  at  its  office  and  the  sender. ^"^  Thus,  it  has  been 
held,  that  when  the  company  has  been  paid  the  extra  charges  for  de- 
livering beyond  the  free  delivery  limit,  and  payment  for  any  addi- 
tional charges  has  been  guaranteed, ^'^*^  the  operator  at  the  receiving 
station,  knowing  that  the  message  is  important,  and  that  the  addres- 
see is  temporarily  in  another  city — where  the  company  had  an  office 
— is  under  a  duty  to  send  it  to  him  there,  and  for  his  failure,  in 
this  respect,  will  lay  the  coni]>any  liable.^'^'  But  the  company  is 
not  liable  for  failing  to  forward  a  message  to  an  absent  addressee, 
where  it  exercises  due  diligence  to  make  personal  deliveiy,  and  the 

"=  Brosiicrs  v.  West.  U.  Tel.  Co.,  45  ""Thorp   v.   West.   V.     Tel.   Co..     84 

.Mo.    App.    433;    West.    U.    Tel.    Co.    v.  Iowa  100.  50  X.  W.  (17.-):  West.  U.  Tel. 

Pearce.  95  Tex.  578,  C8  S.  W.  771.  Co.   v.   Bierhaiis,   8    Ind.   App.   563. 

'""Nonuan   v.   West.   U.   Tel.   Co..   31  >°"  Abbott    v.    West.    U.    Tel.    Co..    80 

Wash.  .■J77.  ^tiiiii.  44,  90  N.  W.  1. 

'»*Wcst.    f.    Tel.    Co.    V.    Pearce.      O-i  '"■  West.  U.  Tel.  Co.  v.  llon.lrieks.  2t» 

Tex.  578.  OS   S.   W.   771.  IVx.   Civ.   App.   300,   03   S.   W.   341. 


282  TELEGEAPII   AND   TELEPHONE    COMPANIES.  [§    293 

operator  is  not  aware  of  his  temporary  address,  altliougii,  the  messen- 
ger boy  in  charge  of  the  message  might  easily  have  learned  where  the 
addressee  was,  if  he  had  inquired  at  any  of  the  places  where  he  at- 
tempted to  make  delivery.  ^'^'^  Where  an  agreement  is  made  of  this 
kind  to  forward  a  message,  it  is  binding  on  the  company  only  for  ;i 
reasonable  time,  which  is  a  question  of  fact.^^^ 

§  294.     Time  to  deliver. 

It  is  the  duty  of  all  telegraph  companies,  after  assuming  the  re- 
sponsibilities attached  to  the  nature  of  a  business  which  they  follow, 
to  deliver  messages  to  the  proper  party  as  soon  after  their  transmis- 
sion as  is  reasonably  practicable  ;^^'^  and  on  a  failure  so  to  do,  they 
will  be  liable  for  all  the  damages  arising  directly  therefrom.^^^  It 
is  as  great  if  not  a  greater  duty  to  make  a  prompt  delivery  as  to  ex- 
ercise same  in  its  transmission.  ^^^  It  is  not  an  easy  matter  to  lay 
down  a  fixed  rule,  prescribing  the  degree  of  promptness  necessary 
in  the  delivery  of  every  particular  message.  They  must  deliver  the 
message  as  soon  as  reasonably  practicable  after  its  transmission,  and, 
in  determining  this  question  it  is  necessary  to  take  into  consideration 
the  surrounding  circumstances.  Thus,  if  the  company's  office  to 
which  the  message  is  sent,  is  a  small  business  office,  on  account  of 
which  there  are  only  a  few  messengers  required  in  the  general  course 
of  business,  and  there  is  an  extra  amount  of  telegraphic  work  going 
on  at  the  time  the  message  is  sent,  a  delay,  caused  by  such  rush  of 
business,  must  be  considered  in  determining  the  question  of  negli- 
gent delay  in  del  i very.  ^^^     The  time  required  for  copying  and  ad- 

^"«West.  U.  Tel.  Co.  v.  Redinger,  63  Adams,    75    Tex.    531,    12    S.    W.    857, 

S.  VY.  15(5.  16  Am.   St.  Rep.  920,  6  L.  R.  A.  844. 

"^Harper  v.  West.  U.    Tel.    Co.,    92  Tlie  operatoi-  has  no  right  to  speculate 

Mo.  App.   304.  as  to  the  probable  effect  of  promptness 

^'"Harkness  v.  West.  U.  Tel.  Co.,  73  or  delay  in  delivering.     Telephone  com- 

lowa  190,  34  N.  W.  811,  5  Am.  St.  Rep.  pany  v.  Brown,   104  Tenn.  56,  78  Am. 

672 ;  Bliss  v.  Baltimore,  etc.,  Tel.  Co.,  St.  Rep.  906.  50  L.  R.  A.  277,  55  S.  W. 

30  Mo.  App.   103;   Cannon  v.  West.  U.  155. 

Tel.  Co.,  100  N.  C.     300,     6     Am.     St.  "^  West.    U.    Tel.    Co.   v.  Moore,   12 

Rep.  500,  6  S.  E.  731.  Ind.  App.    136,   54   Am.   St.  Rep.   515. 

'"Hendricks  v.  West.     U.  Tel.     Co.,  "nVest.  U.  Tel.  Co.  v.  Neel,  86  Tex. 

126  K  0.  304,  35  S.  E.  543,     78     Am.  368,  40  Am.   St.  Rep.  847. 
St.   Rep.   658:      West.   U.   Tel.      Co.   v. 


§    295]  AS  TO   MESSAGES LIABILITY.  283 

dressing  the  iiiessagL'  and  for  numbering  it/*"*  the  distance  the  sendee 
lives  from  the  office,  and  the  difficulty  in  reaching  him,  must  be  con- 
sidered in  determining  the  degree  of  diligence  exercised.  A  telegram 
delivered  in  its  regular  order,  within  half  an  hour  of  the  time  it 
was  received  at  its  destination,  is  delivered  within  a  reasonable 
time;^^'^  and  where  the  operator  promised  the  addressee  to  deliver 
his  message  ''at  once,"  the  company  is  still  bound  to  ordinaiy  dili- 
gence. ^^^  A  delay  of  five  hours  in  delivering  a  message,  the  urgency 
of  which  is  known  to  the  company,  is  negligence,  when  it  attempts  to 
find  the  addressee  down  town  and  at  his  office,  but  fails  to  leave 
notice  there  or  to  visit  his  residence  within  the  free  delivery  limits, 
where  he  might  have  been  found. ^^"  What  is  due  diligence  in  this 
respect  is  a  question  of  fact,  and  not  one  to  be  left  to  the  judgment 
of  the  company.  ^^* 

§  295.     Same  continued — two  messages  of  same  nature  received 
within  office  hours. 

There  is  a  peculiar  duty  with  respect  to  tlie  time  of  delivery 
where  there  are  two  messages  having  relation  to  the  same  matter,  and 
transmitted  to  the  same  party  within  a  short  period  of  each  other,  but 
the  first  delivered  is  not  transmitted  until  after  the  other.  If  the  com- 
pany is  not  guilty  of  negligence  in  delivering  one  before  the  other, 
it  will  not  be  liable.  It  may  have  good  reasons  to  give  why  this  ac- 
cident was  caused,  as  that  the  telegrams  were  sent  out  by  the  two 
different  messengers,  but  the  one  carrying  the  second  message  hap- 
pens to  find  the  sendee  before  the  first.  ^^^  But  if  the  messages  show 
on  their  faces — which  they  ought  to  show — the  time  when  each  was 
delivered  to  the  company,  the  sendee  could  hardly  be  heard  to  com- 

'"West.    U.    Tel.    Co.    v.    McConnico,  "' Hendershot   v.    West.   U.   Tel.    Co.. 

27  Te.x.  Civ.  App.  610,  66  S.  W.  592;  106  Iowa  529,   76  X.   W.   828,  68  Am. 

Davis  V.  West.  U.  Tel.  Co.,  66  S.  W.  St.  Rep.  313. 

17,    23    Ky.    L.    Rep.    1758;    West.    U.  '"Telephone  Co.  v.  Brown,  104  Tenn. 

Tel.  Co.  V.  Virginia  Paper  Co.,  87  Va.  56,  78  Am.  St.  Rep.   906,  50  L.   K.   A. 

418,  12  S.  E.  75.5.  277,   55    S.    W.    155. 

'"Julian    V.    West.    U.    Tel.    Co.,    98  ""Cannon  v.   West.   U.  Tel.  Co.,   100 

Ind.  327.  N.  C.     300,    6    Am.     St.     Rep.     590,    6 

"•West.  U.  Tel.  Co.  v.  De  Jarles,  8  S    E.  731. 
T.X-.   Civ.   .\pp.   109,   27   S.   W.   792. 


-S^  TELEGKAPli   AND    TELKL'llOAE    COMi'AXlKS.  [§    295 

plain,  for  hv  avuuUI  have  notice  of  the  time  \vheii  thev  were  transmit- 
ted and  eonld  act  accordingly.  The  company  may  make  reasonable 
office  hours,  within  M-hich  all  messages  shonld  be  received  for  innned- 
iate  delivery,  and  should  they  not  be  received  within  that  time,  the 
company  would  not  be  duty  bound  to  deliver  the  message  until  the 
office  was  opened,  and  as  soon  thereafter  as  practicable.  A  person, 
desiring  a  message  delivered  at  an  usual  hour,  should  inquire  whether 
it  will  be  delivered  at  that  time,  and,  in  the  absence  of  such  inquiry, 
the  telegraj^h  company  does  not  become  answerable  for  the  delay  by 
its  failure  to  volunteer  the  information  that  the  office  to  which  the 
message  is  addressed,  is  not  open  for  business  until  later. ^^°  And  if 
two  messages  are  delivered  to  the  company  for  transmission  at  dif- 
ferent times,  but  the  office,  to  which  they  were  to  be  sent,  is  closed 
when  both  are  delivered,  the  company  would  not  be  liable  in  the 
absence  of  negligende,  if  the  second  message  should  be  delivered  be- 
fore the  one  first  tendered  for  transmission.-^^^ 

§  296.     Free  delivery  limit. 

In  many  instances,  the  addressee  of  a  message  lives  some  distance 
from  the  company's  office,  and,  to  require  the  latter  to  deliver  the 
message  to  sUch  party,  wdthout  extra  compensation,  might  impose  on 
it  an  unreasonable  burden,  so  these  companies  may  prescribe  rules 
by  which  they  may  agree  to  deliver  all  messages  within  a  certain 
radius  of  their  offices,  free  of  charge  and  require  extra  compensation 
for  all  delivery  beyond  this  radius. ■""-  These  regulations  are  generally 

'-"  ^^"est.  U.  Tel.  Co.  V.  Xeel,  86  Tex.  suppose      the    contract   to   transmit      a 

3GS,    40    Am.    St.    Rep.    847,   25    S.   W.  message   is   silent   about   free   delivery. 

15.  Tf  we  hold  the  clause     in     controversy 

'-'  Cannon  v.   West.  U.   Tel.   Co.,   100  to    be    restricted    of   a    right,    then,    in 

N.    C.    300,    6    S.    E.    731,    6    Am.    St.  the   case   supposed,   the   telegraph   com- 

Rep.  590;  Hooker  v.  West.  U.  Tel.  Co..  pany    would    be    bound    to    deliver    to 

34    So.    (Fla.)    901.  the   sendee,    no   matter   how   great   the 

'^  "Free  delivery  within  a  half-mile  distance  to  his  residence.  Free  deliv- 
is  not  a  restriction  of  a  right,  but  a  ery  is  a  conditional  obligation,  eontin- 
qualified  privilege  granted.  It  is  not  gent  on  the  sendee's  residence  being 
an  inherent  right;  for  if  it  were,  in  within  the  area  of  free  delivery;  and 
the  absence  of  restriction,  it  would  until  the  condition  is  shown,  the  tele- 
have  no  limits.  To  show  to  what  ab-  graph  company  is  not  put  in  default.'" 
surd     results     this  would  lead,  let  us  \^'est.  U.  Tel.  Co.  v.  Henderson,  89  Ala. 


N,    296]  AS  TO   MESSAGES LIABIEITY.  285 

to  be  found  on  llic  k-k-^rapii  blanks,  and  arc  presumed  to  have  been 
accepted  at  the  time  of  signing  and  delivery  of  the  telegram  to  the 
company.  While  this  is  the  general  way  these  regulations  are  mad:- 
and  entered  into,  yet  there  are  statutes  in  some  states  containing 
the  same  stipulations,  and  they  bind  all  who  contract  business  with 
these  companies  within  their  jurisdiction.  Of  course,  this  free  de- 
livery limit  must  be  reasonable,  and  in  determining  this  qnestion 
the  snrrounding  circumstances  must  be  considered.  The  size  of  the 
town  or  city  and  location  of  the  surrounding  country  are  the  princi- 
ple questions  to  be  considered'  in  arriving  at  this  fact.  It  has  been 
held  that  a  radius  of  one  half  mile  in  a  city  of  five  thousand  inhab- 
itants, and  a  radius  of  one  mile  in  cities  having  more  than  this  num- 
ber, was  a  reasonable  distance  within  which  to  give  free  delivery.^-'' 
When  the  addressee  lives  beyond  the  free  delivery  limit,  and  this  fact 
is  known  by  either  the  company's  operator  or  the  sender,  it  is  t\vi 
duty  of  the  latter  to  pay  an  extra  compensation  for  such  delivery; 
and,  the  company  is  under  no  obligation  to  accept  the  message  for 
transmission  until  this  is  paid.  It  is  held  in  some  courts  that  if  the 
fact  is  not  known  by  either  the  sender  or  the  operator  that  the  sendee 
lives  beyond  the  free  delivery  limit,  the  company  is  under  no  obli- 
gation to  deliver  the  message,  if  the  extra  charges  are  not  paid,  waiv- 
ed or  guaranteed  to  be  paid  ;^-^  but  the  better  holding,  however,  is 
that  the  company  is  under  obligations  to  deliver  the  message  if  the 
sendee  lives  within  a  reasonable  distance  beyond  the  delivery  lim^it, 
provided  he  will  pay  for  such  extra  charges. ^-^    It  will  hardly  be  nec- 

510,  7   So.  419,   18  Am.  St.  Rep.   153;  v.    West.    U.    Tel.    Co..    84   Tex.    17.    10 

West.   U.   Tel.    Co.    v.    Ward,    23    Ind.  S^.  W.  285;   West.  U.  Tel.  Co.  v.  War- 

377,  85  Am.  Dec.  462;    West.  U.  Tel.  ren,  36  S.  W.  314;   West.  U.  Tel.  Co. 

Co.  V.  Redingor,  22  Tex.  Civ.  App.  362,  v.    Drake,    13   Tex.    Civ.    App.    572.    .36 

.54   S.    W.   417.  S.  W.  786. 

•^West.   U.   Tel.    Co.   v.   Trotter,   55  ^^^  West.   U.  Tel.    Co.    v.    Moore,    12 

111.   App.   659.  Ind.   App.    136,   54  Am.    St.   Rep.    515. 

12^  West.   U.   Tel.   Co.    v.    Henderson.  The  court  in  this  case  disagreed  with 

89  Ala.  510,  7  So.  419,  18  Am.  St.  Rep.  the  holding  in  the  case  of  West.  V.  Tel. 

148;  Whittemore  v.  West.  U.  Tel.  Co..  Co.    v.    Henderson,     above     cited,   and 

71  Fed.  651;  West.     U.     Tel.     Co.     v.  said:      "'We  are   aware   that  in  West. 

Matthews.  107  Ky.  663,  55  S.  W.  427:  U.  Tel.  Co.  v.  Henderson.  89  Ala.  510, 

Rohe  V.   West.   U.  Tel.   Co.,  70   S.   W.  7   So.  419,  18  Am.  St.  Rep.   148,  it  is 

W,  24  Ky.  L.  Rep.  845;  West.  U.  Tel.  declared   that   the   sender   is   bound   to 

Co.  V.  Cross,  74  S.  W.  1098;  Anderson  know   whether   the  sendee   lives   within 


2S6 


TELEGKAPH   AND    TELEPHONE    COMPANIES. 


[§  296 


essary,  at  this  place,  to  enter  into  the  reasons  given  to  sustain  each 
of  the  above  holdings;  but  suffice  it  to  say  that  these  companies  niuN- 
prescribe  regulations  whereby  they  may  exact  of  all  their  patrons,  an 
extra  compensation  for  all  deliveries  made  beyond  the  free  delivery 
limit,  when  the  fact  is  known  at  the  time  the  message  is  tendered  for 
acceptance.  And  on  failure  so  to  do,  the  company,  is  under 
no  obligation  to  accept  the  message ;  but  if  the  fact  is  not  known,  it  is 
the  duty  of  the  company  to  deliver  the  message  on  the  sendee's  pay- 
ing for  the  extra  charges.  In  those  jurisdictions  holding  the  first 
rule,  it  is  held  that  the  company  may  waive  the  right  to  exact  of  the 
sender  the  extra  compensation  ;^^^  or  he  may  give  a  written  guaranty 
to  pay  all  additional  charges  incurred  in  delivering  the  message  be- 


the  free  delivery  limits  and  must  him- 
self provide,  beforehand,  for  delivery 
if  he  does  not.  We  do  not,  however, 
concur  in  the  reasoning  or  conclusion 
of  this  case  upon  this  proposition. 
Many  men  have  occasion  to  communi- 
cate with  others  in  cities  and  towns 
where  they  are  totally  ignorant  of  the 
distances  between  the  company's  re- 
ceiving station  and  the  addressee's 
residence.  Even  if  they  know  the 
street  and  number,  they  may  still  be 
wanting  in  a  knowledge  of  the  location 
with  reference  to  the  station. 

Such  a  regulation  as  we  are  now 
considering  would,  as  it  seems  to  us, 
be  harsh,  inequitable  and  uimecessary. 
When  the  patron  pays  to  the  company 
the  amount  which  he  believes,  in  good 
faith,  covers  its  entire  charge  for  the 
service,  and  the  company  receives  it 
and  the  message,  he  has  a  right  to  ex- 
pect that  the  company  will  carry  the 
message  to  the  person  addressed,  if 
within  the  statutory  delivery  limits, 
and  present  it  to  him  for  delivery. 
If  there  be  then  any  additional  sum 
due,  the  company  may  require  its 
payment  before  it  surrenders  the  mes- 
sage to  the  sendee,  if  it  prefers  to  do 
sc  rather  than  rely  solely  upon  the 
sender  for  its  payment.     The  company 


will  thus  be  furnished  ample  protec- 
tion, and  the  expectations  and  pur- 
poses of  the  sender  of  the  message  will 
not   be    disappointed. 

This  course  seems  to  us  to  afford 
a  much  fairer  and  more  equitable  so- 
lution of  the  problem  as  to  what  is 
the  duty  of  the  company  than  to  hold 
that  it  may  stop  the  message  half  way 
upon  its  course,  and  thus  really  render 
to  the  sender  no  service,  after  receiv- 
ing from  him  what  both  thought  to 
be  the  full  price  therefor.  We  appre- 
hend that,  if  such  a  course  were  fol- 
lowed, there  would  be  few  instances 
where  the  sendee  would  refuse  to  re- 
ceive the  message,  and  pay  the  delivery 
charge    if   proper. 

If  he  did  a  notification  to  the  sender, 
in  most  of  those  few  instances  would 
bring  the  money  from  him.  If,  how- 
ever, the  company  might  occasionally 
lose  a  delivery  charge,  the  loss  to  it 
would  be  trifling  and  inconsiderable 
when  compared  with  the  possible  loss 
and  inconvenience  to  the  public  and 
patrons  who  have  relied  in  good  faith 
upon   their   delivery    of   the   message." 

'2«  Roche  V.  West.  U.  Tel.  Co.,  70 
S.  W.  39,  24  Ky.  L.  Rep.  845;  West. 
U.  Tel.  Co.  V.  O'Keefe,  29  S.  W.   1137. 


^    298]  AS    TO    MESSAGES LIAIilLITY.  287 

yond  the  free  delivery  limit/-'  and  iheirtbe  company  is  under  obli- 
gation to  deliver. 

§  297.     When  sendee  lives  several  miles  from  office. 

Very  often  messages  are  sent  to  persons  who  live  in  the  country  or 
several  miles  from  the  receiving  oflSce  of  the  company;  and  then, 
surely,  the  latter  would  be  under  no  obligation  whatever  to  make 
such  delivery,  ^-^  unless  there  is  a  special  agTeement  to  that  effect.^-® 
It  has  been  held  without  much  plausible  reason  that  when  this  extra 
charge  is  refused  to  be  paid  by  either  sender  or  the  addressee,  the 
company  would  not  be  under  any  obligations  to  deliver  the  message, 
even  when  it  would  not  necessarily  be  put  to  any  additional  expense. 
Thus,  where  the  agent  at  the  receiving  office  notifies  the  addressee 
by  mail,  and  also  asks  that  the  extra  charges  be  guaranteed  by  him, 
the  agent  is  not  liable  for  refusing  to  give  the  message  to  a  neighbor 
who  offers  to  deliver  it  without  charge.  ^^'^  If  the  charges  for  trans- 
mission have  not  been  paid,  the  agent  would  clearly  have  the  right 
to  refuse  to  deliver  the  message  to  this  party ;  but  if  there  is  nothing 
except  the  extra  charge  for  delivery  left  unpaid,  and  the  company  is 
put  to  no  extra  expense  in  making  such  delivery,  as  in  the  cited  case, 
and  the  manner  of  delivery  is  acceptable  to  the  addressee,  we  see  no 
reason  why  the  agent  should  not  make  such  delivery.  While  the  com- 
pany will  be  under  no  obligations  to  deliver  a  message  to  a  party 
who  lives  several  miles  from  the  receiving  office  without  first  being 
compensated,  yet  this  is  no  reason  why  it  may  not  use  diligence  in 
attempting  to  deliver  the  message  to  him  while  temporarily  within 
the  free  delivery  limits. ^^^ 

§  298.     Same  continued — may  waive  right. 

If  the  addressee  lives  beyond  the  free  delivery  limits,  and  this 
fact  is  known  by  the  company's  operator  at  the  time  the  message  is 

'"RejTiolds  V.  \\e>t.  U.  Tel.  Co.,  81  '^West.  U.  Tel.  Co.  v.  Matthews.  G7 

Mo.  App.   223.  S    W.  849,  24  Ky.  L.  Rep.  3. 

'=«  West.  U.  Tel.  Co.  v.  ]\Iatthews,  107  ""  West.    U.   Tel.   Co.   v.    Swearinger. 

Ky.  663,  55  S.  W.  427;  West.  U.  Tel.  05  Tex.  420,  67  S.  W.  767. 

Co.  V.   Swearinger,   95  Tex.  420,   67   S.  ''^  Rasser   v.   West.   U.   Tel.   Co..    130 

W.     767,  reversing  65  S.     W.     1080;  N.  C.  251,  41  S.     E.     378;     West.     U. 

West.    U.    Tel.    Co.    v.    Taylor,    3    Tex.  Tel.    Co.   v.   Davis,   30   Tex.   Civ.   App. 

Civ.  App.  310,  22  S.  W.  532.  500,  71   S.  W.  313. 


288  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [^    298 

received  it  may,  nevertheless,  become  liable  for  a  failure  to  deliver, 
when  it  has  waived  its  right  to  collect  for  the  extra  charge.  ^^^  What 
is  necessary  to  constitute  a  waiver  is  a  question  of  fact,  and  where 
the  company  has  been  accustomed  to  accept  messages  addressed  to 
certain  parties  living  beyond  this  free  delivery  limit  for  a  long  time, 
it  will  be  presumed  that  it  has  waived  its  rights. ^^^  In  those  juris- 
dictions which  hold  that  a  company  is  under  no  obligation  to  deliver 
a  message  to  an  addressee  living  beyond  the  free  delivery  limit,  with- 
out the  prepayment  of  the  extra  charge,  it  is  generally  the  custom  for 
the  operator  at  the  receiving  office  to  notify  the  sender  of  the  fact 
that  the  sendee  lives  beyond  these  limits,  and  the  amount  of  the  ex- 
tra charge  necessary  to  be  paid;  and,  on  a  failure  to  do  this,  the 
company  will  be  liable  for  non-delivery.  ^^^  But  if  the  sender  can- 
not be  found,  after  reasonable  search,  in  order  that  he  may  be  in- 
formed of  this  fact,  the  company  will  then  have  discharged  its  duty 
and  will  not  be  liable  for  the  non-delivery.  Whatever  the  custom 
may  be  with  respect  to  the  delivery  of  messages  beyond  the  free  de- 
livery limit,  and  the  manner  of  collecting  the  extra  compensation,  the 
regulations  requiring  prepayment  of  special  charges  will  be  strictly 
construed  against  the  company. ^^^ 

§  299.     No  delivery  limit  fixed. 

If  there  is  no  free  delivery  limit  fixed,  either  by  the  company  or 
by  statute,  it  is  presumed  that  the  company  will  deliver  all  messages 

"*Whittemore  v.   West.   U.  Tel.   Co.,  Tenn.   6.38,  37   S.   W.  545,  34  L.  R.  A. 

7]    Fed.  651;   West.  U.     Tel.     Co.     v.  431n;    West.   U.   Tel.   Co.   v.   Cain,   40 

Matthews,    67    S.   W.    849,    24   Ky.    L.  S.  W.  624;  West.  U.  Tel.  Co,  v.  Davis, 

Pvep.  3;   West.  U.  Tel.  Co.  v.  Robinson,  24  Tex.  Civ.  App.  427,  59  S.  W.  46. 

97  Tenn.  038,  37  S.  W.  545,  34  L.  R.  A.  »*  Evans  v.  West.  U.  Tel.  Co.,  56  S. 

431n;   West.  U.  Tel.  Co.  v.  Teague,  8  \\ .   609;   West.  U.  Tel.  Co.  v.  Pearce, 

Tex.   Civ.    App.    444,    27    S.   W.   958;  70   S.   W.   360.     Where  such  notice  is 

West.  U.  Tel.  Co.  v.  Hargrove,  14  Tex.  not  given,  it  would  be  evidence  of  neg- 

Civ.  App.  79,  36  S.  W.  1077;  West.  U.  ligence.    Hendricks     v.  West.     U.  Tel. 

Tel.   V.    Sweetman,    19    Tex.   Civ.  App.  Co.,  126  N.  C.  304,  35  S.  E.     543,     78 

435,  47   S.   W.   676;    West.  U.  Tel.   v.  Am.  St.  Rep.  658;  Bright  v.  West.  U. 

Davis,   30  Tex.    Civ.   App.    590,   71    S.  Tel.    Co.,    132    N.    Car.    317,   43    S.    E. 

W.   313.  841;   Bryan  v.  W^est.   U.  Tel.   Co.,   133 

'=^  West.    U.   Tel.    Co.   v.   Womack,    9  N.  C.  603,  43  S.  E.  841. 

Tex.    Civ.    App.    607,    29   S.   W.   932:  '=^  West.   U.   Tel.   Co.    v.    Moore,     12 

West.     U.     Tel.     Co.    v.    Robinson,     97  Ind.    136,   54   Am.    St.    Rep.   515. 


§    300]  AS   TO   MESSAGES LIAIilLITY,  289 

to  parties  who  live  within  a  reasonable  distance  of  the  company's  of- 
fice. It  is  not  to  be  understood,  wlit-n  these  message  blanks  contaiti 
a  stipulation  that  messages  will  be  delivered  free  within  the  estalj- 
lished  free  delivery  limits  of  the  terminal  office  and  that  for  a  greater 
distance  a  special  charge  will  be  made  to  cover  the  cost  of  such  de- 
livery, that  this  prescribes  or  fixes  a  free  delivery  limit,  but  that  it 
gives  the  conipaiiy  the  right  to  make  a  limit;  and  until  such  is  madi- 
it  is  presumed  that  the  company  will  deliver  to  all  who  live  within  a 
reasonable  distance  from  the  terminal  office,  ^^'^lat  is  a  reasonable 
distance  is  a  question  for  the  jury,  and  must  be  determined  by  a  con- 
sideration of  the  surrounding-  circumstances.-''^*^ 

§  300.     Must  use  due  diligence  to  deliver. 

The  company  must  exercise  due  diligence  and  effort  to  find  the  ad- 
dressee of  a  message  and  deliver  same  to  him.^^'  We  may  say  that 
there  is  even  a  greater  amount  of  diligence  required  on  the  part  of 
a  telegraph  company  in  making  an  effort  to  find  the  addressee  and  de- 
liver the  message  to  him  than  to  be  exercised  in  its  transmission.  For, 
if  there  is  an  immediate  effort  to  transmit,  and  the  company  is  unable 
on  account  of  some  unavoidable  hindrance  to  do  so,  the  sender  may 
be  notified  in  time  to  pursue  another  course  if  possible.  But  when 
the  message  has  been  transmitted  to  the  operator  at  the  terminal  of- 
fice, it  will  be  so  far  beyond  his  reach  as  to  prevent  him  from  ascer- 
taining: the  condition  of  affairs.  It  is  then  not  incumbent  on  him  to 
find  out  whether  or  not  the  company  is  exercising  diligence  in  de- 
livering the  message;  ^^^  or  even  whether  it  has  delivered  it  at  all. 
It  is  always  presumed  that  the  company  is  exercising  diligence  in 
the  transmission  and  delivery  of  its  messages,  and  the  sender,  for  this 
reason,  would  likely  be  laboring  under  the  heliei  that  the  message 

""West.  r.  Tol.  Co.  V.  Russol.  31   S.  12  Ind  App.  13G.  54  Am.  St.  Rep.  515; 

\y.  G98.  Maiivillo  v.  West.  U.  Tel.  Co.,  37  Iowa 

'"Pope   V.   West.     U.     Tel.      Co.,     0  214.   18  Am.  Rep.  8;   Mackay  v.  West. 

Brdw.    (111.)    283;    Bliss   v.   Baltimore,  I'.    Tel.    Co..    16    Nev.    222;    West.    U. 

etc.,  Tel.  Co.,  30  Mo.  App.  103;  Julian  Tel.  Co.  v.  Fatman.  73  Ga.  285,  .14  Am. 

V    West.  U.  Tel.     Co.,     98     Ind.  327;  Rep.   877. 

Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa  >»West.  U.  Tel.  Co.  v.  Chamblee,  122 

190,    34    N.    W.    811,    5    Am.    St.    Rep.  Ala.   42S.  2.")  So.  232.  82  Am.   St.  Rep. 

G72;   West.  U.   Tel.   Co.  v.   Gougar,   84  89. 
Ind.   176:   West.  U.  Tel.  Co.  v.  :Mooie, 
T.  &  T.— 19 


290  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [<^    300 

had  been  delivered  promptly  and  accomplished  the  desired  results. 
Keasonable  diligence  exercised  in  the  finding  of  the  sendee  and  a 
promptness  to  deliver  same  to  him,  is  a  part  of  the  contract  of  trans- 
mission, and  a  failure  to  do  either  is  no  transmission. 


139 


§  301.     Same  continued — illustrations. 

It  is  not  enough  to  attempt  a  delivery  at  the  office  or  place  of  busi- 
ness of  the  person  addressed ;  ^^^  especially  when  he,  as  well  as  his 
place  of  residence,  is  well  known  in  the  town  where  the  message  is 
received.  ^^^  Failing  in  the  attempt  to  deliver  a  message  after  busi- 
ness hours  or  on  Sunday,  will  not  excuse  a  failure  to  deliver  ;^*^ 
and  where  it  was  said  that  "the  unsuccessful  attempts  of  the  com- 
pany's agent  to  deliver  said  message  at  the  business  house  of  Arthur 
Peter  &  Company,  the  addressee,  either  on  Saturday  night  after  the 
close  of  business  hours,  or  on  Sunday  where  there  are  not  or  should 
not  be  any  business  hours,  certainly  affords  no  reasonable  excuse  for 
the  non-delivery  of,  or  for  want  of  an  effort  to  deliver,  the  said  mes- 
sage during  business  hours  of  the  succeeding  Monday."  A  company 
failed  to  exercise  due  diligence  in  delivering  a  message,  where  it  was 
given  to  a  messenger,  who  took  it  to  the  addressee's  place  of  busi- 
ness and  was  there  told  that  the  latter  was  five  miles  in  the  country, 
but  that  a  person  was  going  out  there  and  would  carry  it;  and  the 
message  was  taken  back  to  the  office  and  no  further  attempt  made 
to  deliver  it,  though  the  house  of  the  addressee  was  about  one-half 
mile  from  the  terminal  station  in  a  town  where  there  were  no  pre- 
scribed free  delivery  limits.  ^^^ 

§  302.     Diligence  exercised — evidence — burden  of  proof. 

When  a  telegraph  company  fails  to  deliver  a  message  to  the  party 
addressed,  or  when  it  is  delivered  but  not  immediately,  the  question 
which  necessarily  presents  itself  is.  Whether  or  not  it  is  a  question  of 

'=»West.   U.   Tel.   Co.   v.    Gougar,   84  '"West.    U.   Tel.   Co.   v.  Lindley,  62 

Ind.    176.  Ind.  371. 

"*Pope  V.  West.  U.  Tel.   Co.,  9   111.  "=West.  U.  Tel.  Co.  v.  Russel,  31  S. 

App.  587.  W.    698.      See,   also,    Sherrill   v.   West. 

^"West.   U.   Tel.    Co.   v.    Cooper,    71  U.  Tel.  Co.,  116  N.  C.  655,  21     S.     E. 

Tex.    507,    9    S.    W.    598,    10    Am.    St.  429. 
Rep.  772,  1  L.  R.  A.  728n. 


<^    303]  AS   TO    MESSAGES LIABILITY.  291 

fact  to  be  decided  by  a  jury,  or  a  question  of  law  for  the  court  ?  If 
the  evidence  in  the  case  is  so  very  clear  as  to  show  to  any  reasonable 
and  fair-minded  man  that  the  company  was  not  negligent  in  making 
a  reasonable  effort  to  deliver  the  message  sent,  or  if  it  is  an  undis- 
puted fact,  it  is  a  question  for  the  court.  ^'*'*  But  if  the  evidence  on 
this  point  is  conflicting,  it  is  a  question  of  fact.^"*^  In  order  to  as- 
certain the  fact  as  to  whether  a  telegraph  company  ha?  been  negli- 
gent in  delivering  a  message  promptly,  for  which  it  would  be  liable 
for  all  damages  arising  therefrom,  all  the  facts  pertaining  to  the  case 
must  be  considered.  jSTo  two  cases  arise  with  the  same  state  of  facts 
and  the  facts,  necessary  to  be  considered,  are  not  always  the 
same.  The  burden  of  proof  to  show  that  the  company  exercised  due 
diligence  in  the  delivery  of  the  message,  is  on  the  company.  Thus, 
the  fact  that  the  person  addressed  was  not  at  the  oflBce  and  could  not 
be  found  so  that  the  message  could  be  delivered  to  him,  is  a  matter 
of  defense  Avhich  must  be  shown  by  the  company ;  ^^®  and  any  in- 
formation received  by  the  messenger  at  the  office  of  the  addressee  as 
to  the  whereabouts,  is  admissible  to  show  that  he  was  not  at  the  time 
at  the  place  to  which  the  message  was  sent.^*'^ 

§  303.     Failure  to  designate  with  accurateness  the  address. 

The  sender  is  presumed  to  know  the  name  of  the  party  to  whom 
he  desires  the  message  to  be  sent,  where  he  resides  and  that  he  has 
written  this  accurately  and  correctly  on  the  telegram.  The  com- 
pany's duty  is  only  to  transmit  and  deliver  to  the  person  whose  name 
is  given,  at  his  address.  So,  if  the  company,  after  having  assumed 
the  duty  to.  transmit  a  message,  sends  it  to  the  person  at  the  place 
designated  and  same  is  accepted  by  the  person  claiming  to  be  the  ad- 
dressee, or  an  authorized  agent  of  his,  it  will  have  discharged  its 
duty,  notwithstanding  the  fact  that  it  was  delivered  to  the  wrong 
party.     This  may  be  caused  by  the  contributory    negligence    of   the 

'"Deslottes    v.    Baltimore,   etc.,   Tel.  Ind.  371;    fVest.  U.  Tel.  Co.  v.  Trissal, 

Co.,  40  La.  Ann.  183,  3  So.  566;  Mil-  08  Ind.  566. 

liken  v.  West.  U.  Tel.  Co.,   110  N.  Y.  '"West.   U.    Tel.    Co.   v.    Cooper,   71 

403,  1  L.  R.  A.  28;   West.  U.  Tel.  Co.  Tex.    507,    9    S.    W.    598,    10   Am.    St 

V.  :\rcKibben,   114  Ind.   511,   14  X.   E.  Rep.  772,   1  L.  R.  A.  728n. 
894;   West.  U.  Tel.  Co.  v.  Lindley,  62  "'Id. 

»"  Id. 


-92  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [§    303 

sender,  by  not  giving  the  name  and  address  of  the  sendee  with  suffic- 
ient aecnracv.  Thus,  if  the  sender  should  fail  to  designate  with  ac- 
curate definiteness  the  name  of  the  addressee  or  his  place  of  abode, 
and  the  message  is  delivered  to  a  person  claiming  to  be  the  party  ad- 
dressed, as  where  the  message  is  addressed  to  291  Eaanpart  street, 
and  is  delivered  at  that  number  on  N^orth  Rampart  street,  upon  in- 
formation that  the  addressee  lived  there,  instead  of  being  delivered 
at  that  number  on  South  Rampart  street,  where  the  addressee  in  fact 
resided,  the  company  would  not  be  liable. -^^^  Or,  if  the  sender  di- 
rects the  message  to  Mrs.  La  Fountain,  Kankakee,  a  place  of  twelve 
or  fifteen  thousand  people,  and  fails  upon  request  to  make  the  name 
of  the  addressee  more  definite,  or  to  give  the  street  and  number  of  her 
residence,  he  is  guilty  of  such  contributory  negligence  as  will  pre- 
vent him  from  recovering  for  the  failure  of  the  company  to  deliver 
the  message. ^^'^  But  should  the  sendee's  place  of  business  or  resi- 
dence be  the  only  thing  improperly  given  in  the  message — his  name 
being  correctly  written  and  known  by  the  operator  at  the  terminal 
office — it  w^ould  be  the  duty  of  the  company  to  exercise  diligent  ef- 
fort to  find  and  deliver  the  message  at  the  proper  place,  and  not 
that  designated  in  the  telegram.  The  address  is  subordinate  to  the 
name  of  the  addressee  and  is  given  only  as  a  means  of  finding  the 
party  addressed. 

§  304.     Penalty  imposed  for  failure  to  deliver. 

There  are  statutes  in  most  of  the  states  which  impose  a  penalty 
on  telegraph  companies  for  a  failure  to  promptly  transmit  and  de- 
liver messages  intrusted  to  them,  and  this  penalty  may  be  recovered 
without  alleging  or  proving  any  actual  damages.  ^^^  But,  in  other 
cases,  unless  the  plaintiff  proves  special  injury  or  actual  damage,  he 
can  recover  nominal  damages  only.-*^^ 

"'Deslottes    v.    Baltimore,    etc.,    Tel.  Ihichanan.   .35   Ind.   429,     9     Am.   Rep. 

Co.,  40  L;i.  Ann.   183,  3  So.   566.  744. 

'«West.  U.  Tel.  Co.  v.  McDaniel,  103  ''^'Little   Rock,   etc.,   Tel.   Co.    v.   Da- 

Ind.  294,  2  N.  E.  709.  vis,  41  Ark.  79;  Cults  v.  West.  U.  Tel. 

^=^  Little   Rock,   etc.,   Tel.   Co.   v.   Da-  (  o.,  71   Wis.  46,   36   X.  W.   627. 
vi.s,  41    Ark.   79;   West.  U.  Tel.   Co.   v. 


^    ;J05]  AS  TO   MESSAGES LIAHIf-I'lY.  293 

§  305.     Duty  to  preserve  secrecy  of  message. 

It  is  the  duty  ui  a  tclegrapL  coiiipuuy  tu  abstain  from  using  or 
divulging  the  contents  of  messages  intrusted  to  them  for  transmis- 
sion.    There  is  a  similarity  between  correspondence    by    mail    and 
communicatiuiis  by  wire,  with  respect  to  the  rights  of  the  receiver  of 
the  letter  and  the  telegraph  company  over  the  message.     The  weight 
of  authority  is,  that  the  receiver  of  a  letter  has  only  a  right  in  its 
tangible  property  or  the  paper  on  which  it  is  written ;  that  the  literary 
qualities  or  property  therein  belongs  to  the  writer,  and,  that  it  can 
be  used  by  the  former  only  as  a  means  of  carrying  out  the  purposes 
for  wliieli  it  \vas  written.     From  this  doctrine  it  follows  as  a  general 
rule,  that  the  receiver  has  no  right  to  publish  the  letter  without  the 
consent  of  the  writer,  and  such  publication  will  be  enjoined  by  a 
court  of  equity. ^^-     The  grounds  on  which  the  right  of  injunction  is 
granted  for  such  matters  is,  that  to  permit  a  receiver  of  a  letter  to 
use  it  for  other  purposes  than  that  for  which  it  was  written,  or  to 
permit  him  to  have  the  right  to  divulge  its    contents,    would    be    a 
breach  of  bad  faith  and  would  tend  to  create  public  disturbances  and 
breaches  of  the  peace.  ^^^     In  the  application  of  this  principle  to  tele- 
graph companies  in  the  transmission  of  messages,  it  is  very  important 
to  bear  in  mind  that  the  company  mr.st  necessarily  be  informed  of 
the  contents  of  a  message  in  order  that  it  may  be  able  to  transmit  it, 
but  that  this  is  the  only  reason  Avhy  it  should  obtain  this  information. 
It  can  obtain  no  interest  cither  in  the  tangible  property  of  the  tele- 
gram, as  the  receiver  of  a  letter  obtains  in  the  letter,  nor  any  inter- 
est whatever  in  it  as  a  literary  product.    The  receiver  of  a  letter  may 
use  its  contents  for  the  purposes  for  which  it  was  intended  to  be  used, 
and  may  derive  profit  thereby;  but  the  telegraph  company  can  use 
the  contents  or  knowledge  of  the  telegram  only  as  a  means    of   cor- 
rectly transmitting  and  delivering  it,  and  it  would  hardly  be  possi- 
ble that  a  telegi-am  would  be  tendered  to  them  for  transmission,  out 
of  which  they  could  derive  further  profit  than  that  acquired  for  its 
service.     While  the^e  is  a  striking  similarity  existing  between  these 
two  parties  over  letters  and  telegrams,  respectively,    while    in    their 
possession,  yet  it  seems  that  the  interest  acquired  by  the  latter  i^  not 

"-Sniitii,  Per.   Prop.  02.  '^^^  Smith.    Per.    Prop.    <)2;     Gray   on 

Tel..   §   25. 


294  TELEGRAPH   AND  TELEPHONE    COMPANIES.  [§    305 

SO  great  as  that  of  the  former.  So,  if  the  former  can  be  enjoined 
from  using  the  letter  for  other  purposes  than  that  for  which  it  was 
intended  to  be  used,  there  is  no  reason  why  a  telegraph  company  may 
not  be  enjoined  from  using  or  divulging  the  contents  of  the  tele- 
gram. ^^^  The  duty  imposed  on  telegTaph  companies  in  this  respect 
is  even  greater  than  that  of  the  receiver  of  a  letter ;  for  the  latter  has 
the  control  over  the  tangible  property  of  the  letter  and  its  contents 
sent  directly  in  its  original  form  from  the  writer,  and  being  a  prin- 
cipal in  the  correspondence  has  surely  more  liberties  with  the  letter 
than  the  former  over  the  messages  intrusted  to  its  care.  It  follows, 
therefore,  that  if  a  telegraph  company  makes  any  use  or  disclosure  of 
its  message  other  than  is  necessary  in  the  ordinary  course  of  its  busi- 
ness, it  will  be  liable  to  the  sender.  Involved  in  every  contract  for  the 
transmission  of  a  telegraphic  dispatch  is  an  obligation  on  the  part  of 
the  company  to  keep  its  contents  secret  from  the  world,^^^  for  a 
breach  which  it  will  be  liable  for  all  actual  damages  arising  directly 
therefrom  and  should  it  be  done  in  a  willful  or  reckless  manner,  it 
should  be  held  liable  for  punitive  damages.  The  company  is  not 
liable,  however,  for  a  disclosure  of  a  message  in  court  in  pursuance  to 
a  writ  of  subpoena  duces  tecum.^^^ 

§  306.     Same  continued — imposed  by  statute. 

In  some  states  there  are  statutes  which  impose  the  duty,  either 
upon  telegraph  companies  or  upon  their  operators,  to  abstain  from 
disclosing  the  contents  of  a  message  intrusted  to  their  care,  and  for  a 
willful  violation  of  which  the  wrongdoer  is  subjected  to  punish- 
ment. ^^'^  These  are  penal  statutes  and  must,  therefore,  be  strictly 
construed.  So,  if  the  statutes  provide  that  the  transmitting  operator 
shall  be  punished  for  a  violation  of  the  statute,  he,  and  not  the  com- 
pany, nor  the  receiving  operator  or  messenger,  shall  be  punished  for 
the  wrong.  In  other  words,  if  the  statute  imposes  this  duty  only  on 
the  transmitting  operator,  and  the  contents  of  the  message  are  will- 
fully divulged  at  the  other  end  of  the  line,  either  by  the  receiving 
operator  or  messenger  boy,  the  first-named  operator  would  not  be 
guilty  of  a  wrong,  nor  would  the  company,  unless   its    servant    was 

"*Id.  ^''''Gray  on  Tel.,  §  25. 

^"Cock  V.  West.  U.  Tel.  Co.,  36  So.  '"Id.  "^ 

302. 


^    308]  AS  TO  MESSAGES LIABILITY.  295 

acting  at  that  time  within  the  scope  of  his  authority.  But  should  the 
wrong  be  committed  by  the  company's  employee  while  acting  within 
his  apparent  authority,  the  company  will  be  liable  for  such  wrong 
as  any  other  principal  would  be  for  the  wrongs  of  his  agent,  under 
similar  circumstances. 

§  307.     Same  continued — applicable  to  telephone  companies. 

This  duty  is  applicable  to  telephone  companies.  It  is  the  duty  of 
their  employees  to  abstain  from  divulging  or  using  any  of  the  con- 
tents of  any  communication  carried  on  over  their  wires,  and  for  a 
violation  of  which  they  will  be  liable  in  damages.  The  strictness  of 
this  rule  should  be  very  stringently  observed,  since  the  operators  of 
these  companies  are  placed  in  a  position  to  ascertain  all  the  business 
transactions  about  which  the  communications  are  made,  and  could, 
for  this  reason,  injure  the  communicants  very  seriously  in  their  busi- 
ness affairs. 

§  308.     Messages  "in  care  of"  common  carriers. 

Common  carriers,  as  such,  are  under  no  obligation  to  deliver  mes- 
sages to  their  passengers.  So,  if  a  message  is  delivered  to  one  of 
their  employees,  addressed  in  care  of  the  common  carrier,  for  one  of 
the  passengers  on  board,  they  will  not  be  liable  for  a  failure  to  de- 
liver the  message,  unless  it  is  the  custom  or  practice  for  such  mes- 
sages to  be  delivered;  and  then  it  seems  that  the  company  would  be 
liable.  ^^^  Arrangements  could  be  made  to  this  effect  by  special  agree- 
ment, and  under  such  circimistances,  the  carrier  would  be  duty 
bound  to  make  such  delivery.  If,  however,  the  message  is  addressed 
to  one  of  the  employees  of  the  carrier  and  is  sent  in  care  of  the  latter, 
designating  the  particular  carrier,  a  delivery  to  the  latter  will  be  suf- 
ficient delivery ;  and  it  would  be  the  duty  of  the  latter  to  make  a  de- 
livery to  the  party  addressed  if  practicable.  But  if  the  message  is 
addressed  to  one  of  the  employees  of  another  carrier,  as  that  of  a 
sleeping  car  company,  and  sent  in  care  of  the  common  carrier  of 
passengers,  or  railroad  company,  the  latter  would  not  be  under  any 
obligation  to  deliver  the  message,  unless  special  arrangements  have 
been  made  to  that  effect. 

^•^  Davis  V.  Eastern  Steamboat  Co.,  telegram  was  delivered  to  the  captain 
94  Me.  379,  53  L.  R.  A.  239,  where  the      of  a  steamboat. 


CHAPTER  XIV. 

NEGLIGENCE. 

§  309.  In  general. 

310.  Presumption   of   negligence — onus   proband!. 

311.  Same  continued — illustrations. 

312.  Presumption  may  be  rebutted. 

313.  Non-payment  of  charges — no  defense — regulation. 

314.  Contributory  negligence. 

315.  Messages  must  be  legible. 

316.  Same  continued — address  must  be  definite. 

317.  Operator  writing  message  for  sender — his  agent. 

318.  Messages   not  stamped — contributory  negligence. 

319.  Delay  in  sending — no  contributory  negligence. 

320.  Injured  party — should  minimize  loss. 

321.  Presumed  to  perform  contract. 

322.  Should  resort  to  Other  means  when  necessary. 

323.  Misinterpreting  message — addressee. 

324.  Should  read  carefully — sendee. 

325.  Cause — proximate — remote. 

326.  Contributory — negligence — same  rule. 

327.  Evidence — wealth  or  poverty  of  either  party — company. 

328.  Same  continued — party  injured. 

329.  Declaration  of  agents. 

330.  Subsequent  acts  of  company — of  plaintiff. 

331.  Evidence   of    plaintiff's   good    faith — erroneous    messages. 

332.  Same  continued — other  cases. 

§  309.     In  general. 

Telegraph  companies,  having  placed  themselves  before  the  public 
to  assume  public  duties,  must  make  suitable  preparations  to  perform 
those  duties  as  befitting  an  employment  of  this  or  of  a  similar  nature. 
In  order  to  do  this,  they  should  have  the  best  and  most  suitable  ma- 
chinery and  facilities,  and  the  most  skilled  and  experienced  work- 
men; and  after  being  supplied  as  above  required,  they  must  not  be 
guilty  of  carelessness  in  the  performance  of  their  work,  but  must  ex- 
ercise ordinary  care  in  the  transmission  and  delivery  of  all  mes- 
sages intrusted  to  them.  On  a  failure  to  exercise  reasonable  care  in 
the  transmission  of  messages,  and  on  a  failure  to  use  due  diligence  in 
finding  and  promptly  delivering  them  to  the  parties  addressed, 
whereby  injury  is  incurred,  they  will  be  liable  for  all  damages  aris- 

(296^ 


<§    300]  NEGLIGENCE.  297 

ing  therefrom.  It  is  not  an  easy  matter  to  determine  what  is  ordi- 
nary care,  but  the  better  hokling  is,  that  ordinary  care  is  such  care 
as  should  be  exercised  by  a  responsible  man  of  ordinary  understan<l- 
ing  and  ability  under  similar  circumstances ;  or  such  as  a 
prudent  man  of  ordinary  mind  and  understanding  would 
exercise  for  himself  while  operating  under  similar  circumstances.  In 
describing  the  matter  in  this  manner,  it  is  presumed  that  the  very 
greatest  care  will  be  exercised,  for  it  is  very  reasonable  that  a  man 
of  any  judgment  and  prudence  will  always  exercise  the  most  careful 
consideration  in  endeavoring  to  promote  his  own  welfare.^  There 
have  been  a  few  courts  which  liave  held  that  there  were  different  de- 
grees of  care  to  be  exercised  by  these  companies  in  the  transmission 
and  delivery  of  messages,  or,  in  other  words,  that  there  were  differ- 
ent degTees  of  negligence  as  a  result  of  the  want  of  care:  as  that  of 
"due  and  reasonable  care,"  "ordinary  care  and  vigilence,"  "reason- 
able and  proper  care,"  "reasonable  degree  of  care  and  diligence," 
"care  and  diligence  adequate  to  the  business  which  they  undertake," 
"with  skill,  witli  care,  and  with  attention,"  "a  high  degree  of  re- 
sponsibility," "gTeat  care,"  or  "gross  negligence,"  ^  But  it  seems 
that  all  these  expressions  are  expressive  of  one  and  the  same  term, 
that  of  ordinary  care  considered  under  the  pending  circumstances. 
For  instance,  it  may  be  necessary  that  a  greater  degree  of  care  should 
be  exercised  in  one  instance  than  in  another,  in  the  transmission  and 
delivery  of  the  message;  as,  where  the  message  is  transmitted  dur- 
ing a  storm,  it  seems  that  a  higher  degree  of  care  should  be  exercised 
than  if  it  were  sent  during  a  calm.  This  is  only  ordinary  care  af- 
fected by  surrounding  conditions  which  should  be  considered  in  de- 

'Coit  V.  West.  U.  Tel.  Co..  130  Cal.  547;   New  York,  etc.,  Tel.  Co.  v.  Dry- 

657,  80  Am.  St.  Rep.  153,  63  Pac.  83,  burg,    35   Pa.    St.   298;    West.   U.   Tel. 

53  L.  R.  A.  678.  Co.    v.    Graham,    1    Colo.    230;    Sweet- 

'  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  land  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa 

381,  15  Atl.  20.  G  Am.  St.  Rep.  211:  433,    1    Am.    St.    Rep.    285;    West.    U. 

Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.  141.  Tel.  Co.  v.  Neel,  57  Tex.  283,  44  Am. 

8  Am.  Rep.  526;  Leonard  v.  New  York.  Rep.  589;  West.  U.  Tel.  Co.  v.  Hobson. 

etc..  Tel.  Co..  41  N.  Y.  571,  1  Am.  Rep.  15  Grat.   122:   Pinckney  v.  Tel.  Co.,  19 

446;     Baldwin  v.     U.  S.  Tel.   Co..  45  S.  C.  71;   Smithson  v.  U.  S.  Tel.  Co., 

N.    Y.    751,    6   Am.    Rep.    165:    Bimey  27    Md.    167;    Little    Rock,    etc.,    Tel. 


V. 


New   York,   etc.,    Tel.    Co..    1    Daly.       Co.  v.  Davis.  41  Ark.  79. 


298  TELEGRAPH  AND   TELEPHONE   COMPANIES.  [§    309 


termining  the  want  of  care.    The  degree  of  care  to  be  exercised  in  the 
transmission  of  messages  has  already  been  fully  discussed.^ 

§  310.     Presumption  of  negligence — onus  probandi. 

Any  one  claiming  to  have  been  injured  by  the  negligence  of  a  tele- 
graph company,  and  who  is  endeavoring  to  recover  damages  for  such 
injury,  must  make  out  a  prima  facie  case  of  negligence  on  the  part  of 
the  company  before  he  can  have  any  standing  in  court.  This  may  be 
shown  either  by  direct  proof  to  that  effect  or  by  evidence  which  raises 
the  presumption  of  negligence;  and  when  negligence  is  shown  in 
either  manner,  the  burden  of  proof  shifts  to  the  company.  This  pre- 
sumption, however,  may  be  overcome  by  other  evidence  adduced  by 
the  company.  It  is  not  a  general  rule,  under  the  law  of  negligence, 
that  there  may  be  facts  submitted  which  will  raise  a  presumption  of 
negligence,  since  in  many  instances  proof  of  negligence  must  be 
shown  directly ;  but  in  the  case  of  telegraph  companies — which  are 
exercising  public  functions,  and  in  the  transaction  of  whose  business 
the  highest  degree  of  care  must  be  exercised — there  is  an  apparent 
exception  to  this  general  rule.  When  an  injury  has  been  done  to 
anyone  by  these  companies,  it  is  usually  caused  by  some  inadvertence 
on  the  part  of  the  latter,  the  commission  of  which  is  wholly  and  en- 
tirely beyond  the  knowledge  of  the  injured  party,  but  is  within  the 
knowledge  of  the  company.  For  this  reason  it  would  be  an  injus- 
tice to  impose  on  the  former  the  duty  to  prove  negligence  directly  by 
facts  which  are  only  within  the  knowledge  of  the  company ;  ^  but  if 
the  party  injured  produce  sufficient  proof  to  show  a  presumption  of 
negligence,  his  duty  is  performed  in  this  respect.^  The  proof  may 
be  so  clear  in  some  cases  to  make  out  a  case  of  negligence  per  se. 

§  311.     Same  continued — illustrations. 

If  there  is  proof  to  the  effect  of  an  unreasonable  delay  in  the  de- 
livery or  a  failure  to  deliver,  there  is  a  prima  facie  case  of  negligence 
made  out,  and  the  burden  is  cast  upon  the  company  to  exonerate  it- 

»See  page  203.  421,    14   Am.   Rep.    38;    West.   U.   Tel. 

♦West.  U.  Tel.  Co.  v.  S.  Circle,  103  Co.   v.   Griswold,   37   Ohio   St.   313,  41 

Ind.  227,  2  N.   E.  604.  Am.  Rep.  500. 
"Tyler  v.  West.  U.  Tel.   Co.,  60  111. 


^  311] 


NEGLIGENCE. 


299 


self  of  siich.^  And  where  there  is  a  material  error,'^  or  where  there 
have  been  several  errors  made  in  the  transmission  of  a  telegram,  it  is 
presumed  that  the  company  has  been  guilty  of  negligence,  and  the 
facts  must  be  shown  to  be  otherwise  or  it  will  be  liable.^    Thus,  where 


'Arkansas. — Little  Rock,  etc.,  Tel. 
Co.  V.  Davis,  41  Ark.  79. 

Indiana.— West.  U.  Tel.  Co.  v.  S. 
Circle,  103  Ind.  227,  2  N.  E.  604; 
West.  U.  Tel.  Co.  v.  Ward,  23  Ind. 
377,  85  Am.  Dec.  4G2. 

loioa. — Harkness  v.  West.  U.  Tel. 
Co.,  73  Iowa  190,  5  Am.  St.  Rep.  672, 
34  N.  W.  811. 

£:ansa.'?.— West.  U.  Tel.  Co.  v.  Crall, 
38  Kan.  679,  5  Am.  St.  Rep.  795,  17 
Pac.  309. 

Kentucky.— West.  U.  Tel.  Co.  v.  Mc- 
Ilvoy,  107  Ky.  633,  55  S.  W.  428;  West. 
U.  Tel.  Co.  V.  Fisher,  107  Ky.  513,  54 
S.  W.  830. 

J/auie.— Bartlett  v.  ^^"est.  U.  Tel. 
Co.,  62  Me.  209,  16  Am.  Rep.  447; 
Fowler  v.  W'cst.  U.  Tel.  Co.,  80  Me. 
381,  15  Atl.  29,  6  Am.  St.  Rep.  216. 

Maryland.— IJ.  S.  Tel.  Co.  v.  Gilder- 
sleeve,  29  Md.  232,  96  Am.  Dec.  519. 

North  Carolina. — Sherrill  v.  West. 
U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E. 
429.  117  N.  C.  352,  23  S.  E.  277; 
Rosser  v.  West.  U.  Tel.  Co.,  130  X. 
C.  251,  41  S.  E.  378;  Compare 
Thompson  v.  West.  U.  Tel.  Co.,  106  X. 
C.  549,  11  S.  E.  269. 

Pennsylvania. — W^est.  U.  Tel.  Co.  v. 
Wenger,  55  Pa.  St.  262,  93  Am.  Dec. 
751. 

Texas.— West.  U.  Tel.  Co.  v.  Smith, 
46  S.  W.  659,  88  Tex.  9;  West.  U. 
Tel.  Co.  V.  Cooter,  2  Tex.  Civ.  App. 
624,  21  S.  W.  688;  West.  U.  Tel.  Co. 
V.  Bonichell,  28  Tex.  Civ.  App.  23,  67 
S.  W.  159;  West.  U.  Tel.  Co.  v.  Boots, 
10  Tex.  Civ.  App.  540,  31  S.  W.  825; 
Compare  West.  U.  Tel.  Co.  v.  Bamett, 
1  Tex.  Civ.  App.  558,  21  S.  W.  699. 

MVest.  U.  Tel.  Co.  v.  Crall.  38  Kan. 


079,  5  Am.  St.  Rep.  799,  17  Pac.  309; 
Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa 
190,  5  Am.  St.  Rep.  672,  34  N.  W.  811. 
*  Arkansas. — West.  U.  Tel.  Co.  v. 
Short,   53   Ark.  434,    9  L.  R.  A.   744, 

14  S.   W.  649. 

Illinois.— Tyler  v.  West.  U.  Tel.  Co., 
60  111.  421,   14  Am.  Rep.  38. 

Indiana.— West.  U.  Tel.  Co.  v.  Meek, 
49   Ind.   53. 

loiva. — Turner  v.  Howkeys,  Tel.  Co., 
41   Iowa  458,  20  Am.  Rep.  605. 

Louisiana. — La  Grange  v.  South- 
western Tel.  Co.,  25  La,  Ann.  383. 

Maine. — Ayer  v.  West.  U.  Tel.  Co., 
79  Me.  493,  1  Am.  St.  Rep.  353. 

Mississippi. — West.  U.  Tel.  Co.  v. 
Goodbar,  7  So.  214. 

Missouri. — Reed  v.  West.  U.  Tel. 
Co.,  135  Mo.  661,  37  S.  W.  904,  34 
L.  R.  A.  492,  58  Am.  St.  Rep.  609; 
Lee  V.  West.  U.  Tel.  Co.,  51  Mo.  App. 
375. 

New  York. — Rittenhouse  v..  Inde- 
pendent Line  of  Tel.,  44  N.  Y.  263,  4 
Am.  Rep.  673;  Persall  v.  West.  U.  Tel- 
Co.,  124  X.  Y.  256,  21  Am.  St.  Rep. 
662,  affirming  44  Hun  (N.  Y.)  532, 
criticising  Breese  v.  West.  U.  Tel.  Co., 
48  X.  Y.  132,  S  Am.  Rep.  526. 

Ohio.— West.  U.  Tel.  Co.  v.  Gris- 
wold,  37  Ohio  St.  303,  41  Am.  Rep. 
500. 

Pennsylvania.  —  Xew  York,  etc.. 
Printing  Tel.  Co.  v.  Drybury,  35  Pa. 
St.   298,   78   Am.   Dec.   338. 

Texas.— West.  U.  Tel.  Co.  v.  Harper, 

15  Tex.  Civ.  App.  37,  39  S.  W.  599; 
West.  U.  Tel.  Co.  v.  Oden,  21  Tex.  Civ. 
App.  537,  52  S.  W.  632;  West.  U.  Tel. 
Co.  v.  Hines,  22  Tex.  Civ.  App.  315, 
54  S.  W.  627    (provided  there  was  no 


300  TELEGEAPH   AND   TELEPHONE    COMPANIES.  [^    311 

there  Avere  three  errors  made  in  the  transmission  of  a  message  con- 
taining nine  words,  the  same  being  sent  on  a  fair  day  f  or  an  error  in 
the  name  of  an  addressee  or  sender  made  in  the  course  of  transmission 
this  creates  a  presumption  of  negligence. ■^'^*  It  makes  no  difference 
whether  the  error  was  or  was  not  made  on  a  connecting  line.  Thus^ 
in  the  case  of  La  Grange  v.  Southern  Telephone  Company,  the  de- 
fendant contended  that  it  was  not  the  first  carrier  and  that  plaintiff 
had  failed  to  prove  that  the  error  had  occurred  on  its  line,  and 
showed  an  express  provision  in  its  printed  blanks  that  it  would  not 
be  liable  for  errors  occurring  on  connecting  lines.  It  was  held  that 
the  burden  of  proof  was,  nevertheless,  on  the  company  to  show  that 
the  error  did  not  occur  on  its  line,  since  such  proof  was  easily  within 
its  power.  ^^ 

§  312.     Presumption  may  be  rebutted. 

When  there  has  been  proof  adduced  which  shows  a  presumption  of 
negligence  on  the  part  of  these  companies,  it  is  not  to  be  understood 
that  this  presumption  is  conclusive,  but  that  it  may  be  rebutted  by 
evidence  which  will  excuse  the  company  of  negligence.  When  this  is 
done  there  is  a  shifting  of  the  onus  probandi  from  one  party  to  the 
other,  but  it  is  only  necessary  for  the  party  on  whom  the  burden  has 
last  been  shifted  to  prove  the  falsity  of  the  other's  assertion  as  to  the 
statement  which  caused  the  shifting  of  the  onus.  There  must  be 
sufficient  evidence  shown,  however,  to  rebut  the  presumption  of  neg- 
ligence. Thus,  it  has  been  held  that  these  companies  are  not  relieved 
from  liability  for  an  erroneous  transmission  merely,  by  showing  that 
their  lines  were  in  good  order,  that  approved  instruments  were  used, 
and  that  faithful  and  competent  servants  were  employed,  if  the  par- 
ticular act  complained  of  shows  a  negligent    performance    of    their 

stipulation   for   repeating)  ;      West.   U.  West.   U.    Tel.    Co.   v.    Norris,   25   Tex. 

Tel.    Co.   V.   Boots,   10   Tex.    Civ.   App.  Civ.  App.  43,  60  S.  W.  982;  West.  U. 

540,  31  S.  W.  825.  Tel.    Co.   v.   Reeves,   8   Tex.   Civ.   App. 

•West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  37,  27  S.  W.  318.     Compare  West.  U. 

679,  6  Am.  St.  Rep.  695,  17  Pac.  309.  Tel.    Co.   v.   Elliott,   7   Tex.    Civ.   App. 

"West.    U.   Tel.    Co.   v.   Ragland,    61  482,  27  S.  W.  219. 

S.  W.  421;  West.  U.  Tel.  Co.  v.  Boots,  "La  Grange     v.     Southwestern  Tel. 

10  Tex.  Civ.  App.  540,  31   S.  W.   825;  Co.,  25  La.  Ann.  383. 


1^    314]  NEGLIGEXCE.  301 

duty  to  transmit.^-  Whether  ov  not  the  company  has  been  guilty  of 
negligence — unless  the  act  which  creates  the  injury  is  negligence  per 
se — is  generally  a  question  for  the  jury,  and  it  will  be  an  error  for 
the  court  to  take  the  case  from  the  jury  if  the  facts  are  conflicting, 
however  strong  it  may  appear  that  the  company  has  been  guilty  of 
negligence. 

§  313.     Non-payment  of  charges — no  defense — regulation. 

When  a  telegraph  company  undertakes  to  transmit  and  deliver  a 
message  without  first  demanding  a  prepayment  of  the  charges  for  its 
services,  it  cannot  set  up,  as  a  defense  to  an  action  brought  against  it 
for  injuries  alleged  to  have  been  caused  by  its  negligent  acts,  the  fact 
that  the  charges  have  not  been  paid.  When  this  duty  is  assumed 
without  prepayment  of  compensation,  the  company  must  perform 
tlie  duty  regardless  of  this  fact.^^^  But  it  has  been  held  by  some 
courts  that  if  there  is  not  a  prepayment  of  the  extra  charge  for  de- 
livering the  message  beyond  the  free  delivery  limits,  the  company 
would  not  be  liable  for  a  delivery  or  a  negligent  delay  in  its  delivery, 
and  that  the  burden  w^as  on  the  injured  party  to  show  that  the  sendee 
lived  within  the  free  delivery  limits,^*  but  as  said  elsewhere,  we  are 
inclined  to  think  that  this  is  not  sound  doctrine.^'^ 

§  314.     Contributory  negligence. 

Where  an  action  is  brought  against  a  telegraph  company,  on  the 
ground  of  its  having  been  guilty  of  negligence  in  the  transmission  and 
delivery  of  a  message,  the  principle  of  the  law  of  contributory  negli- 
L'ence  may  be  applied.  Therefore,  if  these  companies  are  guilty  of 
negligence,  either  in  the  transmission  or    deliver^^    of    messages    in- 

'=  Hunter  v.    West.    U.   Tel.   Co..    130  X.   Y.   403.   reversinnr  .53   N.   Y.   Super. 

N.    C.    602,    41    S.    E.    796;    Fowler   v.  Ct.   111. 

Wfst.   U.  Tel.  Co.,  80  Me.   381.  6  Am.  'MVest.   U.   Tel.   Co.   v.    Wilson,     93 

St.  Rep.  211;     West.     U.     Tel.   Co.  v.  Ala.  .32,    9   So.   414,   30   Am.    St.   Rep. 

:Mo('k.   49   Tnd.   .53;    West.   U.   Tel.    Co.  23;    Kendall   v.   West.   U.   Tel.   Co..   56 

V.  S.  Circle,  103  Ind.  227,  2  X.  E.  604.  Mo.    App.    192;    West.    U.    Tel.    Co.    v. 

Compare   Smith   v.   West.   U.   Tel.   Co..  Wilson,  SO  Ala.  510,  7  So.  419.  18  Am. 

.57   Mo.   App.   259.  St.   Rep.    148;    Ruse   v.   West.   U.   Tel. 

•MVe-st.  U.  Tel.  Co.  v.  :Meek;.  49  Ind.  Co..   123  Ind.  274,  7  L.  R.  A.  583n. 

,53:    Milliken  v.   Wc^t.   V.   Tel.   Co.,  40  "See  page  216. 


302  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [<§    314 

trusted  to  their  care,  but  the  plaintiff  on  the  other  hand  has  failed  to 
exercise  ordinary  care  with  respect  to  his  duties  toward  the  company 
in  this  particular  instance,  and  which  is  a  proximate  cause  of  the 
injury  or  which  combines  or  contributes  to  it — and  without  which  the 
injury  would  not  have  been  inflicted — they  will  not  be  liable.  A 
telegi-aph  company  may  be  guilty  of  negligence  without  any  failure 
on  the  part  of  the  plaintiff  to  exercise  ordinary  care  in  these  particu- 
lars; but  there  cannot  be  contributory  negligence  on  the  part  of  the 
plaintiff,  unless  the  company  is  guilty  of  negligence;  and,  in  order  for 
the  latter  to  be  excused  form  its  negligence,  it  must  be  shown  that  the 
plaintiff  has  contributed  to  the  injury.  It  is  not  necessary  to  show 
that  the  plaintiff's  contributory  negligence  was  the  direct  or  sole 
cause  of  the  injury,  but  if  it  is  shown  that  it  proximately  contri- 
buted to  the  cause  of  the  loss  it  will  be  sufficient  to  relieve  the  com- 
pany from  responsibility.^^  It  must,  however,  be  shown  that  it  was 
a  proximate  cause.  Thus,  where  the  company  accepts  a  message  for 
transmission  and  undertakes  to  deliver  it  about  9  o'clock  at  night  the 
fact  that  the  sender  of  the  telegram  might  have  filed  it  earlier  in  the 
evening  so  that  it  could  have  reached  plaintiff,  to  whom  it  was  ad- 
dressed, in  time  to  prevent  the  injury  complained  of,  this  does  not 
make  plaintiff  guilty  of  contributory  negligence.  It  is  not  necessary 
to  discuss  the  principles  of  the  law  of  contributory  negligence  in  this 
treatise,  as  the  same  has  been  very  fully  considered  by  other  text- 
writers  in  works  on  this  particular  subject;  but  it  has  been  thought 
best  to  say  this  much  in  order  to  lay  a  foundation  for  that  which 
follows. 

§  315.     Messages  must  be  legible. 

Telegrams  should  be  written  legibly ;  and  should  a  mistake  in  the 
transmission  or  delivery  occur  on  account  of  a  failure  to  clearly  write 
them  out,  the  negligence  will  be  that  of  the  sender  and  will,  therefore, 
prevent  him  from  recovering.  Thus,  where  the  sender,  intending  to 
order  by  telegraph  the  sale  of  "two  thousand"  cases,  wrote  what 
more  nearly  resembled  "ten  thousand"  cases,  and  sent  the  message  to 
the  telegraph  office  by  a  boy ;  and  the  operator  transmitted  the  dis- 

"West.  U.  Tel.  Co.  v.  Rawls,  62  S.  Hocker  v.  West.   U.   Tel.   Co.,  7    So. 

W.   136.  (Fla.)    901. 


§    ,316]  NEGLIGENCE.  303 

patch  "ten  thousand,"  and,  in  accordance  with  the  regulations  of  the 
company,  added  in  the  parenthesis  the  figures  "10,000"  which  was 
not  in  the  written  message ;  in  an  action  by  the  addressee  against  the 
company  for  damages  sustained  by  reason  of  the  sale  of  ten  thousand 
instead  of  two  thousand  cases,  it  was  held  that  the  cause  of  the  loss 
was  the  negligence  of  the  sender,  and  there  could  be  no  recovery. ^^ 
But  if  the  sender's  error  is  harmless,  it  will  be  no  defense ;  as  where 
the  message  notified  plaintiff  that  his  brother  was  sick  at  a  certain 
place,  when  in  fact  he  was  not  at  that  place  but  at  another,  and  the 
addressee  knew  his  brother  was  at  the  latter  place,  and  would  have 
gone  there :  the  error,  though  made  by  the  sender,  is  no  defense.  ^^ 

§  316.     Same  continued — address  must  be  definite. 

The  sender  must  exercise  reasonable  care  in  giving  the  address  of 
the  sendee  with  suSicient  accuracy,  and  on  a  failure  to  do  so  he  will 
be  guilty  of  contributory  negligence.  Thus,  when  a  message  is  ad- 
dressed to  a  certain  person,  who  is  not  known  by  the  company,  in  a 
certain  street  in  the  city,  the  company  will  have  performed  its  duty 
when  it  has  made  a  reasonable  effort  to  deliver  to  the  person  at  that 
place ;  and  if  there  is  no  such  person  at  that  place,  after  having  made 
diligent  inquiry  to  find  him  there,  the  company  will  not  be  liable,  but 
the  loss  which  may  have  been  incurred  will  be  imputed  to  the  negli- 
gence of  the  sender. ^^  An  address  to  "E.  street"  instead  of  "South 
R.  street,"  bars  recovery ;  ^^  and  where  a  message  is  sent  to  a  place 
of  12,000  people  and  fails  to  designate  the  street  and  number  of  the 
address  on  request,  the  sender  will  be  guilty  of  contributory  negli- 
gence.-^ If  there  are  two  to^vns  of  the  same  name  in  the  state  but  the 
operator  is  informed  of  the  one  to  which  the  message  is  desired  to  be 
sent,  the  company  cannot  avoid  liability  by  setting  up  the  fact  that 
the  address  was  indefinite.^- 

"Koono   V.    West.   U.   Tel.    Co.,    102  pare  Beasley  v.  West.  U.  Tel.  Co..  39 

Pa.  St.  164;  West.  U.  Tel.  Co.  v.  Lid-  Fed.  181.     See,  also,  Lambert  v.  West, 

dell,  68  Miss.  1,  8  So.  510.  U.  Tel.  Co.,  45  S.  W.  1034. 

i«I^_  ^^Deslottes     v.   Baltimore,   etc..   Tel. 

"West.  U.  Tel.   Co.  v.     Patrick,  92  Co.,  40  La.  Ann.  183,  3  So.  566. 

Ga.  607,  18  S.  E.  980,  44  Am.  St.  Rep.  °  West.  U.  Tel.  Co.  v.  McDaniel.  103 

90;  West.  U.  Tel.  Co.  v.  ]\IcDaniel,  103  Ind.  294,  2  N.  E.  709. 

Ind.  294,  2  N.  E.     709;     Hargrove  v.  "West.   U.   Tel.    Co.  v.   Parsons,   72 

West.  U.  Tel.  Co.,  60  S.  W.  6S7.     Com-  S.   W.  800,  24  Ky.  L.  Rep.  208. 


304  TELEGRAPH   AND    TELEPH02fE    COMPANIES.  ['§>    317 

§  317.     Operator  writing  message   for  sender — his   agent. 

It  has  been  generally  held  that  where  an  operator  writes  the  mes-. 
sage  for  the  sender  at  the  latter's  request,  he  acts  as  agent  for  him 
and  not  for  the  company  in  this  particular  matter.  His  duties  to- 
ward the  company  are  to  receive  the  messages  and  the  charges  for  the 
same,  and  then  to  transmit  them ;  when  he  goes  beyond  this  duty  he 
does  not  act  as  the  company's  agent.-^  While  this  is  the  general  hold- 
ing, it  seems  there  is,  and  ought  to  be,  an  apparent  exception  to  the 
general  rule.  Thus,  if  the  message  is  received  by  the  operator  over  a 
telephone  line  and  written  down  by  him,  the  operator  then  acts  for 
the  company,-'*  especially  if  it  has  been  the  custom  to  so  receive  mes- 
sages. Where  the  party  desiring  to  send  a  message  is  unable  to  write 
on  the  account  of  ignorance,  or  because  he  cannot  see  how^  to  write, 
or  when  otherwise  unable  to  Avrite,  the  company  should  not  refuse  to 
serve  him  for  this  purpose,  but  the  scope  of  the  operator's  agency  un- 
der such  circumstances  should,  it  seems,  be  enlarged  so  as  to  devolve 
upon  him  the  duty  to  perform  this  service.^ ^ 

§  318.     Messages  not  stamped — contributory  negligence. 

Where  there  is  an  act  of  Congress  requiring  all  messages  to  be 
stamped,  it  is  the  duty  of  the  sender  to  perform  this  duty  and  not 
that  of  the  company.-''^  So,  if  a  telegraph  company  refuses  to  trans- 
mit a  message  because  it  has  not  been  stamped,  it  will  not  be  liable 
for  such  refusal,  or  for  a  penalty  for  a  refusal  to  transmit  such  a  mes- 
sage. If,  however,  the  sender  is  ignorant  of  such  an  act,  it  seems 
that  the  company  should  inform  him  of  same  and  state  this  as  a  rea- 
son for  refusing  to  accept  the  message.  While  it  is  an  old  maxim 
that  ignorance  of  law  excuses  no  one,  yet  the  operator,  having  knowl- 
edge of  such  a  law  and  knowing  that  the  sender  does  not  have  this 

22  West.   U.   Tel.   Co.   v.     Edsall,     03  ^' Carl.ind   v.   West.   U.   Tel.   Co.,   118 

Tex.  668;  West.  U.  Tel.  Co.  v.  Foster,  Mich.  369,  74  Am.  St.  Rep.  394,  43  L. 

64  Tex.   220,   53   Am.   Rep.   754;    Gulf,  R.  A.  280,  76  N.  W.  762. 

etc.,  R.   Co.  V.   Gur,  5   Tex.   Civ.   App.  ''Id. 

349.   24    S.   W.   86.      Compare   Garland  -'"West.   U.   Tel.   Co.   v.   Hurley,    157 

V    West.   U.   Tel.   Co.,    118   Mich.    309,  Ind.   90,  60  N.  E.  682;   Gray  v.  West. 

74  Am.  rSt.  Rep.  394,  43  L.  R.  A.  280,  V.  Tel.  Co.,  85  Mo.  App.   123. 
76  N.  W.  762. 


^    320]  NEGLIGENCE.  305 

knowledge,  aliuuld  surely  infonn  him  of  Uie  reason  for  not  accepting 
the  message ;  and,  in  doing  this,  he  necessarily  must  tell  him  of  the 
law. 

§  319.     Delay  in  sending — no  contributory  negligence. 

A  telegraph  company  cannot  excuse  itself  from  liability  by  claim- 
ing that  the  sender  was  guilty  of  contributory  negligence  in  not  de- 
livering the  message  earlier  to  the  company,  instead  of  waiting  un- 
til the  last  minute.-'^  In  determining  this  question,  the  fact  must  be 
considered  as  to  whether  or  not  the  negligence  of  the  company  was 
the  proximate  cause  of  the  loss ;  since,  if  is  not,  the  company  will  not 
be  liable.  The  company  may  be  guilty  of  negligence,  but  if  it  Is 
shown  that  the  sender  failed  to  exercise  reasonable  care  in  this  par- 
ticular matter,  wherein  the  company  is  guilty  of  negligence — or,  in 
other  words,  where  the  sender  is  guilty  of  contributory  negligence — 
he  cannot  recover.^* 

§  320.     Injured  party — should  minimize  loss. 

When  a  telegraph  company  has  been  guilty  of  negligence  in  the 
transmission  and  delivery  of  its  messages,  whereby  the  plaintiff  has 
been  injured  or  has  suffered  loss,  it  is  incumbent  upon  the  latter  to 
minimize  the  loss,  if  he  can  do  so  at  a  trifling  expense  or  with  rea- 
sonable exertion.^^  This  is  a  principle  of  law  which  has  been  up- 
held by  almost  all  the  courts, '"^  and  which  has  been  supported  by  the 

"Pope   V.   West.   U.   Tel.  Co.,,   14  111,  Georgia,— West.  U.  Tel.  Co.  v.  Reed, 

App,  531;  West.  U,  Tel.  Co.  v.  Bruner,  83  Ga.  401,   10   S.   E.   919. 

19  S.  W.  149.  Illinoiii.—West.  U.  Tel.  Co.  v.  Hart, 

=*West.  U.  Tel.  Co.  v.  Housewright,  62  111.  App.  120;  West.  U.  Tel.  Co.  v. 

5  Tex.  Civ.  App.  I,  23  S.  W.  824.  North  Packing,  etc.,  Co.,   188  111.  3GG, 

» Miller   v.     Mariner's      Church,      7  58  N.  E.  958,  52  L.  E.  A.  274,  affinn- 

Greenleaf  51,  20  Am.  Dec.  341.  ing  89  111.  App.  301. 

^Alabaina. — Dougherty   v.   West.   U.  Indiana. — West.  U.  Tel.  Co.  v.  Bris- 

Tel.  Co.,  75  Ala.  168,  51  Am.  Rep.  435,  coe,   18   Ind.  App.   22. 

89  Ala.  191,  7  So.  660;  West.  U.  Tel.  /oro.— Hasbrouch  v.  West.    U.    Tel. 

Co.  V.   Way,   83  Ala.   542,  4  So.   844;  Co.,    107    Iowa    160,    70   Am.    St.   Rep. 

West.  U.  Tel.     Co.     v.     Crawford,   110  181,  77  X.  W.  1034. 

Ala.    460,   20    So.    Ill;    West.    U.   Tel.  Kentucky.— West.   U.     Tel.     Co.     v. 

Co.  V.  Chamblee,   122  Ala.  428,  25   So.  Matthews,    67    S.    W.    349,   24   Ky.    L. 

232.  Rep.  3;     Postal     Tel.     Cable     Co.     v. 
T.  &  T.— 20 


306 


TELEGRAPH   AND   TELEPHONE    COMPANIES. 


[§  320 


public  interest  and  soimd  morality.^ ^  If  the  injured  party  fails  to 
exercise  reasonable  diligence  to  make  the  loss  as  light  as  possible,  he 
can  only  recover  such  damages  as  actually  arise  from  the  negligent 
act  of  the  company,  and  not  such  as  may  have  been  minimized  by  a 
reasonable  exertion  on  his  part.  It  is  not  presumed  that  he  knows 
of  the  company's  negligence,  but  if  he  is  informed  of  this  fact,  either 
directly  or  by  circumstances  which  would  lead  him  to  inquire  for 
such  information,  it  is  his  duty  to  make  the  loss  as  light  as  possible, 
if  he  can  do  so  at  a  small  expense  or  by  reasonable  exertion.  Thus, 
where  a  telegi'aph  company  fails  to  transmit  a  message,  in  which  the 
plaintiff  directs  his  agent  to  make  a  sale  of  certain  property,  it  is 
the  duty  of  the  plaintiff,  on  discovering  this  fact,  to  use  reasonable 
diligence  in  repeating  the  order  to  sell.^-  But  what  his  duty  would 
be  in  any  case  depends  upon  the  circumstances  in  the  particular  case 
at  issue.  The  criterion  is  always  what  a  reasonably  prudent  man 
would  have  done  under  similar  circumstances,^^  and  it  is  always  in- 


Schaeffer,  62  S.  W.  1119,  23  Ky.  L. 
Rep.  344. 

Mississippi. — Shingleur  v.  West.  U. 
Tel.  Co.,  72  Miss.  1030,  48  Am.  St. 
Eep.  604,  18  So.  425,  30  L.  R.  A.  444. 

Missouri. — Reynolds  v.  West.  U.  Tel. 
Co.,  81  Mo.  App.  223. 

Neio  York. — Leonard  v.  New  York, 
etc.,  Electro  Magnetic  Co.,  41  N.  Y. 
544,  1  Am.  Rep.  446. 

Tennessee. — Marr  v.  West.  U.  Tel. 
Co.,  85  Tenn.  550,  3  S.  W.  496;  Pepper 
V.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11 
S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St. 
Rep.  699;  West.  U.  Tel.  Co.  v.  Mellon, 
96  Tenn.  60,  33  S.  W.  725. 

rea;as.— West.  U.  Tel.  Co.  v.  Hoff- 
man, 80  Tex.  420,  15  S.  W.  1048,  26 
Am.  St.  Rep.  759;  Gulf,  etc.,  R.  Co. 
V.  Loonie,  82  Tex.  323,  18  S.  W.  221, 
27  Am.  St.  Rep.  891;  West.  U.  Tel. 
Co.  V.  Birduc,  2  Tex.  Civ.  App.  517, 
21  S.  W.  982;  West.  U.  Tel.  Co.  v. 
Terrell,  10  Tex.  Civ.  App.  60,  30  S. 
W.  70;  West.  U.  Tel.  Co.  v.  Jeans, 
29  S.  W.   1130.  88  Tex.  230,  31   S.  W. 


1S6;  West.  U.  Tel.  Co.  v.  Hill,  26  S. 
W.  252;  West.  U.  Tel.  Co.  v.  Davis, 
35  S.  W.  189;  West.  U.  Tel.  Co.  v. 
Sorsby,  29  Tex.  Civ.  App.  345,  69  S. 
W.   122. 

Virginia. — Wash.,  etc.,  Tel.  Co.  v. 
Hobson,   15   Gratt,   122. 

^^  Hamilton  v.  McPherson,  28  N.  Y. 
72,  84  Am.  Dec.  330. 

^-  Doviglierty  v.  American  Union  Tel. 
Co.,  5  Am.  &  Eng.  Corp.  Cas.  (Ala.) 
203;  Leonard  v.  Tel.  Co.,  41  N.  Y. 
544,  1  Am.  Rep.  446;  True  v.  Int.  Tel. 
Co.,  60  Mc.  9,  11  Am.  Rep.  156;  N.  Y. 
&  W.  Pr.  Tel.  Co.  v.  Dryburg,  35  Pa. 
St.  293;  U.  S.  Tel.  Co.  v.  Wenger,  262; 
W.  &  N.  0.  Tel.  Co.  V.  Hobson,  15 
Gratt.  122 ;  West.  U.  Tel.  Co.  v.  Ward, 
23  Ind.  377;  Tyler  v.  West.  U.  Tel. 
Co.,  00  111.  421;  West.  U.  Tel.  Co.  v. 
Blanchard,  08  Ga.  299,  45  Am.  Rep. 
280. 

=«West.  U.  Tel.  Co.  v.  Lydon,  82 
Tex.  364,  18  S.  W.  701;  West.  U.  Tel. 
Co.  v.  Bryson,  25  Tex.  Civ.  App.  74, 
01    S.   W.    548;    West.   U.   Tel.    Co.   v. 


§  322] 


NEGLIGENCE. 


307 


cumbont  iipnu  ihe  cuiiii)aiiy  to  show  tliat  this  (hity  has  not  been  per- 
formed/''* 

§  321.     Presumed  to  perform  contract. 

Telegraph  companies  contract  with  ihcir  patrons  for  a  valuable 
consideration  to  exercise  reasonable  care  to  transmit  and  deliver  cor- 
rectly and  promptly  all  messages  accepted  by  them,  and  it  is  pre- 
sumed that  they  are  carrying  out  their  part  of  the  contract.  There- 
fore, it  is  not  the  duty  of  the  sender  to  anticipate  in  this  respect  neg- 
ligence of  the  company,  nor  is  it  his  duty  to  exercise  diligence  to  as- 
certain by  inquiry  from  the  company  or  otherwise  as  to  whether  or 
not  the  sendee  has  received  the  message  correctly  ;'^°  but  it  seems 
that  if  such  a  fact  has  come  to  his  knowledge  from  a  responsible 
source,  it  is  his  duty  to  inquire  into  the  truth  of  such  information. 
For  instance,  if  it  is  clear  on  the  face  of  an  answer  to  a  telegram 
that  there  is  a  mistake  in  the  original,  and  on  account  of  whicb  loss 
may  be  incurred,  it  is  the  duty  of  the  sender  to  inquire  into  the  mis- 
take in  order  that  he  may  minimize  the  loss ;  ^"  but  if  the  loss  has 
been  incurred  and  there  is  no  means  by  which  it  may  be  made  lighter, 
it  is  not  his  duty  to  notify  the  company  of  the  error  made  in  the  mes- 
sage.^' 

§  322.     Should  resort  to  other  means  when  necessary. 

When  a  sender  ascertains  the  fact  that  the  company  has  been 
guilty  of  negligence,  he  should  resort  to  other  available  means  of 
communication,  if  he  thinks  it  would  be  impossible  for  the  former  to 
accomplish  the  purpose  by  a  reapplication  to  it ;  ^^  but  if  the  party 

Cain,  40  S.     W.     024;     Southwestern,  ^^Hasbrouck     v.  ^Yest.  U.  Tel.     Co., 

etc.,   Tel.   Co.  v.   Taylor,  26  Tex.   Civ.  107  Iowa  160,  77  X.  W.  1034,  70  Am. 

App.  79,  63  S.  W.  1076;  \Yest.  U.  Tel.  St.  Rep.   185;    Beynur  v.  McBride,  37 

Co.  V.  Matthews,  67  S.  W.  849;  West.  Iowa    114;     Greenleaf     on     Evidence, 

U.   Tel.   Co.   V.     Lavender,     40   S.   W.  §   261. 

1035;    West.    U.    Tel.    Co.    v.    Johnson,  =' Rittenhouse  v.  Independent  Line  of 

16  Tex.  Civ.  App.  546,  41  S.  W.  367;  Telegraph,  1  Daly    (N.  Y.)    474,  44  N. 

Gulf,  etc.,   R.    Co.   V.   Loonie,   82   Tex.  Y.  263,  4  Am.  Rep.  673. 

323,  18  S.  W.  221.  "^  Southwestern     Tel.,     etc.,     Co.     v. 

^-'Castigan  v.  Mohawk  &  Hudson  R.  Gotcher,   93   Tex.    114,   53    S.   W.   686. 

Co.,  2  Denio  609,  43  Am.  Dec.  758.  But  see  West.  U.  Tel.  Co.  v.  Wisdom, 

"West.  U.  Tel.  Co.  v.  Chamblee,  25  So  Tex.  261,  20  S.  W.  56,  34  Am.  St. 

So.    (Ala.)    234.  Rop.   805,  22  L.  R.   A.   483. 


308  TELEGRAPH   AND   TELEPHONE    COMPANIES,  [<^    322 

to  whom  the  message  is  addressed  is  the  plaintiff  and  the  injured 
party,  the  company  cannot  set  up  the  fact  as  a  ground  of  defense 
that  the  sender  failed  to  resort  to  these  means."^  If  the  sender  can- 
not prevent  the  entire  loss,  but  only  lessen  it,  he  will  not  be  pre- 
vented from  recovering  all  the  loss,  but  only  such  as  he  might  have 
prevented  by  reasonable  exertions.^ ° 

§  323.     Misinterpreting  message — addressee. 

If  the  message  as  received  by  the  addressee  is  intelligible  and  not 
doubtful  in  its  terms,  he  may  act  according  to  its  intents ;  and  should 
he  have  misinterpreted  its  meaning  on  account  of  an  error  made 
by  the  company,  the  sender  cannot  be  defeated  by  the  defense  of  con- 
tributory negligence  on  the  part  of  the  sendee.^  ^  Thus,  where  a  mes- 
sage was  sent  by  a  client  to  his  attorney  to  attach  a  certain  creditor 
for  "seven  hundred  and  ninety  dollars,"  and  when  the  message  read 
as  received  "even  hundred  and  ninety  dollars ;"  it  was  held  that  the 
attorney  was  not  guilty  of  contributory  negligence  in  interpreting 
the  message  as  meaning  "one  hundred  and  ninety  dollars"*^  But  if 
there  is  anything  in  the  message  itself  which  would  lead  him  to  be- 
lieve that  an  eiTor  had  been  made,  or  if  there  are  any  circumstances 
connected  with  it  which,  with  reasonable  prudence,  would  lead  him 
to  suspect  that  an  error  had  been  made,  he  will  be  guilty  of  contribu- 
tory negligence  if  he  fail  to  inquire  into  such  information  when  the 
opportunity  is  afforded.*^  If,  however,  on  suspecting  an  error  he  re- 
quests the  operator  to  wire  to  the  relay  station  to  verify  the  message, 
and  the  same  is  done,  he  will  have  discharged  his  duty  and  will  not 
be  gl^ilty  of  any  negligence.^'*     When  the  message  is  ambiguous,  but 

»»West.   U.   Tel.   Co.  v.   Wisdom,   85  ^=  West.      U.    Tel.    Co.   v.   Beals,     56 

Tex.  261,  20  S.  W.  56,  34  Am.  St.  Rep.  Neb.   415,   76   N.  W.   903,   71   Am.   St. 

805,  22  L.  R.  A.   483.  Rep.   682. 

« Mitchell   V.   West.   U.   Tel.   Co.,    12  "West.     U.  Tel.   Co.  v.   Adair,      115 

Tex.  Civ.  App.  262,  33  S.  W.   1016.  Ala.   441,  22   So.   73;  Manly  Mfg.  Co. 

"West.  U.  Tel.  Co.  v.  Beals,  56  Neb.  v    West.  U.  Tel.  Co.,  105  Ga.  235,  31 

415,   76  N.  W.  903,   71   Am.   St.   Rep.  S.  E.  156;   West.  U.  Tel.  Co.  v.  Neill. 

682;    Tobin  v.   West.   U.   Tel.   Co.,    146  57   Tex.   283,   44  Am.   Rep.   589. 

ra.   St.   375,  20  Atl.  324,  28  Am.   St.  "Efird  v.  West.  U.  Tel.  Co.,  132  X. 

Rep.  802;  Hasbrouch  v.  West.  U.  Tel.  C.  267,  43  S.  E.  825. 
Co.,    107    Iowa    160,    70   Am.    St.   Rep. 
181.  77  N.  W.   1034. 


<^    324]  KEGLIGENCE.  309 

still  the  sendee  acts  on  it,  guessing  at  its  intended  meaning,  he  will 
be  responsible  for  all  losses  occurring  from  his  incorrect  guessing. 
The  company  cannot  even  be  held  liable  for  his  wrongful  guessing  j^"^ 
and  where  the  message  is  intelligible  and  unambiguous,  it  is  a  ques- 
tion of  fact  as  to  whether  the  sendee  was  misled  in  its  meaning."*''' 
The  nature  of  the  telegram  and  the  circumstances  surrounding  the 
sendee's  position  with  respect  to  the  business  about  which  it  was 
sent,  should  be  considered  by  a  jury  in  determining  this  question.*' 
For,  if  he  has  had  other  communications  respecting  this  business,  or 
if  he  is  familiar  with  it,  liis  interpretation  should  be  considered  more 
carefully. 

§  324.     Should  read  carefully — sendee. 

It  is  the  duty  of  the  sendee  of  a  telegram  to  read  it  carefully  be- 
fore acting  thereon;  and  should  he  fail  to  do  so,  whereby  loss  is  in- 
curred which  might  have  been  avoided,  or  at  any  rate  could  have 
been  minimized,  had  the  message  been  considered  with  more  care,  he, 
and  not  the  company,  must  suffer  for  such  negligence*^  It  is  very 
true  that  telegraph  companies  may  be  guilty  of  negligence  in  trans- 
mitting messages,  but  if  the  same  is  received,  apparently  intelligible, 
the  sendee  may  safely  act  according  to  its  terms ;  yet  if  there  is  any 
ambiguity  in  the  message  which  could  be  easily  observed  by  an  ordi- 
narily prudent  business  man  by  careful  reading,  the  negligence  of 
the  company  will  be  excused  on  account  of  the  contributory  negli- 
gence of  the  sendee.  And  again,  these  companies  cannot  be  held  lia- 
ble for  a  loss  caused  by  the  sendee  acting  on  a  misinterpreted  or 
vague  message.^^  These  companies  endeavor  to  teach  their  patrons 
that  brevity  of  their  messages  is  the  mainspring  of  the  former's  exis- 
tence :  it  is  better  for  the  patron,  in  that  it  lessens  his  expenses ;  and 
it  is  to  the  interest  of  the  companies,  in  that  it  enables  them  to  do 

^''Hart    V.    Direct    U.    S.    Cable    Co..  hrouek  v.  West.  U.  Tel.  Co.,   107  Iowa 

80  N.  Y.  633;  De  Riitt  v.  New  York.  100,  70  Am.   St.   Rep.    181,   77   N.  W. 

etc.,   Electric     Magnecto     Tel.      Co.,   1  1034. 

Daly    (N.  Y.)    547;   West.  U.  Tel.  Co.  "Id. 

V.     Neill.   r->7   Tex.   292,   44   Am.     Rep.  **  West.    U.    Tel.    Co.   v.    Harper.    15 

589.  Tex.  Civ.  App.  37,  39  S.  W.  599. 

"Manly  Mfg.   Co.   v.   West.   U.   Tel.  "Davis  v.  West.  U.  Tel.  Co..  46  W. 

Co..   105   Ga.  235,   31   S.  E.   156;   Has-  Va.   48,   32    S     E.    1026. 


"10  TTSLEGRAPH   AXD   TELEPHONE    COMPANIES.  [^    324 

more  work  in  a  shorter  time.  But  while  this  is  the  case,  it  is  not  to 
be  understood  that  thej  have  obligated  themselves  to  write  the  mes- 
sage for  the  sender,  nor  to  tell  him  how  it  should  be  written.  This 
fact  is  attempted  to  be  impressed  on  all  who  do  business  with  them, 
and  it  is  presumed  that  they  know  of  this  when  they  apply  for  ser- 
vice. The  company,  then,  can  only  transmit  such  messages  as  may 
be  presented  to  it  for  transmission  and,  if  they  are  vague  in  any- 
wise, it  is  not  the  duty  of  the  company  to  inform  either  the  sender  or 
addressee  of  its  vagueness,  since  it  may  appear  to  the  former  as  being 
vague  when  it  would  not  so  appear  to  either  of  the  other  parties.  But 
if  it  is  vague  to  the  sendee,  he  should  use  reasonable  exertions  to  find 
out  its  meaning  and,  on  failure  to  do  so,  whereby  injury  has  been  in- 
curred, he  will  be  charged  with  contributory  negligence. 

§  325.     Cause — proximate — remote. 

In  order  that  the  injured  party  may  recover  for  an  alleged  negli- 
gence of  the  company,  it  must  be  shown  that  the  company's  negli- 
gence was  the  proximate  cause  of  the  injury.  While  this  is  the  un- 
disputed principle  of  law  in  such  cases,  yet  there  has  not  been  any 
rule  laid  down  by  wdiich  it  may  be  determined  as  to  whether  or  not 
the  negligence  is  proximate  or  remote.  In  other  words,  there  has  no<" 
been  nor  can  there  be  a  line  drawn  separating  the  two,  so  that  it 
may  be  said  that  it  is  a  subject  to  be  placed  on  one  or  the  other  side 
of  this  line,  but  the  facts  in  each  particular  case  must  be  considered 
in  determining  the  question.^''  After  the  facts  have  been  presented, 
they  must  then  be  sufficient  to  warrant  a  jury  in  finding  that  the  neg- 
ligence was  the  proximate  cause  of  the  injury ;  that  is,  facts  and  cir- 
cumstances must  be  proved  sufficiently  to  bring  conviction  to  a  rea- 
sonable mind,  Avithout  resorting  to  mere  conjecture  or  uncertainty, 
and  mere  presumption  that  the  company's  neglect  of  duty  was  the 
proximate  cause  of  the  injury.^^     A  jury  must  not,  in  determining 

'^'' Hendershot   v.    West.    U.   Tel.    Co.,  Evans  Corns.  Co.  v.  West.  U.  Tel.  Co., 

106  Iowa  529,  76  N.  W.  828,  68  Am.  101  Mo.  App.  500,  74  S.  W.  876;  Hig- 

St.  Rep.  313;  MePeek  v.  West.  U.  Tel.  don  v.  West.  U.  Tel.  Co.,  132  N.  Car. 

Co.,    107    Iowa   356,   78   N.   W.   63,   70  726,  44  S.  E.  538. 

Am.   St.   Rep.   205,   43   L.   R.   A.  214;  "  Hendershot     v.   West.  U.  Tel.  Co., 

West.  U.  Tel.  Co.  v.  Simpson,  64  Kan.  106  Iowa  529,  G8  Am.  St.  Rep.  313,  76 

309,  67     Pac.     839;     Rtrahorn-IIutton-  X.  W.  828. 


^362]  NEGLIGENCE.  311 

this  question,  indulge  in  conjecture,  speculation,  or  guesswork,  al- 
though they  need  not  he  convinced  to  an  absolute  certainty;  if  there 
is  a  preponderance  of  the  evidence  to  the  effect  that  negligence  was 
the  proximate  cause  of  the  injury,  the  jury  is  warranted  in  finding 
the  company  liable  therefor.^-  Thus,  a  delay  of  five  hours  in  deliv- 
ering a  message,  the  importance  of  which  was  shown  on  its  face,  to  a 
veterinary  surgeon  requesting  his  immediate  attendance  to  treat  a 
very  valuable  horse,  was  negligence  on  the  part  of  the  company;  and 
if  by  a  prompt  delivery  the  surgeon  would  probably  have  gotten  to 
the  horse  in  time  to  have  saved  its  life,  then,  the  proximate  cause  of 
the  death  of  the  animal  would  be  the  delay  in  the  delivery  of  the 
message.^^  Where  the  plaintiff  informs  the  company  that  he  is  ex- 
pecting to  receive  an  important  message  and,  after  this  information, 
the  company  delays  the  delivery  of  a  telegram,  whereby  the  plaintiff 
is  defeated  in  capturing  a  fugitive  from  justice,  and  thereby  loses  the 
reward,  the  company's  negligent  delay  is  the  proximate  cause  of  the 
loss  and  it  is,  therefore,  liable  for  so  much  thereof.^*  It  must  be 
shown  that-  the  prompt  delivery  would  have  prevented  the  loss ;  as, 
where  a  w^arning  message,  directed  to  a  man  who  was  being  pursued, 
was  not  delivered,  and  the  addressee  was  killed  by  his  pursuers:  it 
was  held  that  there  could  be  no  recovery,  since  it  did  not  appear  that 
the  prompt  delivery  of  the  message  would  have  saved  his  life.^^ 

§  326.     Contributory — negligence — same  rule. 

The  same  rule,  as  above,  will  apply  where  the  company  attempts  to 
set  up,  as  a  defense,  the  contributory  negligence  of  the  injured  party. 
The  plaintiif  must  use  ordinary  care  in  carrying  out  his  business 
transactions  with  these  companies,  an<l  if  he  fails  to  do  so,  which 
contributes  proximately  to  the  company's  neglect,  he  cannot  recover. 
While  it  is  difficult  to  say  as  to  whether  or  not  the  want  of  the  in 
jured  party  to  use  ordinary  care  has  contributed  proximately  to  the 

"Id.  Tel.  Co.,  24  Xev.   125,  50  Pac.  438,  74 

"Id.  Am.  St.  Kc-p.  701.     In  this  case  it  was 

"JlcPeek   V.   West.   U.   Tel.   Co..    107  lield  that     unreasonable     delay  in  the 

Iowa  356,  70  Am.  St.  Rep.  205,  43  L.  delivery   oi   a   message  was   the   proxi- 

R.  A.  214,  78  N.  W.  63.  mate  cause  of  an  injury  caused  by  be- 

■^  Ross  V.   West.   U.   Tel.   Co.    ( C.   C.  ing   run   over   by   rail-cars   due   to   the 

A.),  81  Fed.   070;   Barnes  v.  West.  U.  injured   party's  negligence. 


312 


TELEGRAPH   A^'D    TELEPHONE    COMPANIES. 


[^  326 


company's  negligence,  yet  it  may  be  said  that  it  does  contribute  prox- 
imately to  the  injury  when  it  is  an  active  and  efficient  cause  of  the 
injury  in  any  degree,  however  slight,  and  not  the  mere  condition  or 
occasion  of  it.^°  Thus,  if  in  the  case  cited  in  the  preceding  sec- 
tion— where  there  was  a  delay  of  five  hours  in  delivering  the  message 
to  the  surgeon — the  injured  party  had  learned  of  the  delay  and  did 
not  take  other  steps  to  get  this  or  another  veterinary  surgeon,  or 
did  not  attempt  in  other  ways  to  save  his  horse,  his  neglect  would 
have  contributed  proximately  to  that  of  the  company's,  and  pre- 
vented recovery ;  but  if  the  neglect  of  the  company  had  been  the  more 
immediate  cause  of  the  injury,  he  may  recover. ^"^  That  is,  if  both 
the  injured  party  and  the  company  have  been  guilty  of  negligence, 
but  that  of  the  company  is  the  more  immediate  cause  of  the  injury, 
the  company  will  be  liable.     On  the  other  hand,  if  it  appears  that  the 


^''Bigelow  on  Torts,  311;  Beach  on 
Con.  Nag.  36;  Wharton  on  Neg., 
§  303;  Shearman  &  Eeaf  on  Neg., 
§  33;  McHendrich  v.  Mississippi,  etc., 
R.  Co.,  20  Iowa  338 ;  Murphy  v.  Deane, 
101  Mass.  455,  3  Am.  Rep.  390;  Norris 
V.  Litchfield,  35  N.  H.  271,  69  Am. 
Dec.  546;  Washington  v.  B.  &  0.  R.  R. 
Co.,  17  W.  Va.  190.  In  this  case  the 
court  said:  "Properly  speaking,  con- 
tributory negligence,  as  the  very  words 
impart,  arises  when  the  plaintiff  as 
well  as  the  defendant  has  done  some 
act  negligently,  or  has  omitted 
through  negligence  to  do  some  act 
which  it  was  their  respective  duty  to 
do,  and  Ihe  combined  negligence  of  the 
two  parties  has  directly  produced  the 
injury.  On  the  contraiy,  if  the  act 
of  the  defendant  is  the  immediate 
cause  of  the  injury,  no  preceding  neg- 
ligence or  improper  conduct  of  the 
plaintifi"  would  prevent  him  from  re- 
covering; for  in  such  a  case  his  pre- 
ceding negligence  or  improper  conduct 
would  not  be  in  law  regarded  as  any 
part  of  the  cause  of  the  injury,  and 
would  not  therefore  be  held  to  be  con- 
tributory negligence.        The    phiintiff's 


preceding  negligence  or  improper  con- 
duct is  in  such  case  a  mere  condition, 
and  not  a  cause  of  the  injury.  Though 
it  may  be  in  such  a  case,  that  the  in- 
jury could  not  possibly  have  happened 
withoiit  this  preceding  negligence  or 
improper  conduct  of  the  plaintiff,  that 
is,  without  circumstances  being  in  the 
actual  condition  in  which  the  plaintiff 
had  impro})erly  placed  them,  he  may 
in  such  case  nevertheless  recover;  for 
in  the  view  of  the  law,  which  now 
looks  to  the  remote  cause,  which  we 
have  called  a  condition,  but  only  the 
proximate  cause,  the  injury  in  such  a 
case  would  be  held  to  be  caused  by  the 
defendant  only." 

^^  Manly,  etc.,  Wilmington,  etc.,  R. 
Co.,  74  N.  C.  655;  Kerwhacker  v. 
Railroad  Co.,  3  Ohio  St.  172,  62  Am. 
Dec.  246;  Brown  v.  Hannibal,  etc.,  R. 
Co.,  50  Mo.  461,  11  Am.  Rep.  420; 
Pittsburg,  etc.,  R.  Co.  v.  Karns,  13 
Ind.  87;  Richmond,  etc.,  R.  Co.  v.  An- 
derson, 31  Gratt.  (Va.)  812.  31  Am. 
Rep.  754;  Zemp  v.  Wilmington,  etc., 
R.  Co.,  9  Rich.  L.  (S.  Car.)  84,  64 
Am.   Dec.   763. 


§    327]  NEGLIGENCE.  313 

injury  would  have  nevertheless  occurred  had  the  company  exercised 
ordinary  care,  the  plaintiff  cannot  recover,  however  negligent  the 
company  may  have  bcen.^^  In  other  words,  the  act  must  have  been 
caused  by  the  negligence  of  the  company  unconnected  with  any 
fault  of  the  plaintiff,  and  as  a  result  of  which  the  injury  would  not 
have  been  inflicted.  And  in  all  cases  where  the  question  is  whether 
or  not  the  alleged  negligence  is  the  proximate  cause  of  the  injury, ^^ 
it  is  a  question  of  fact  to  be  decided  by  a  jury. 

§  327.     Evidence — wealth  or  poverty  of  either  party — company. 

It  might  be  well  to  discuss  at  this  place  the  admissibility  of  cer- 
tain evidence  touching  on  the  wealth  or  poverty  of  either  party  O 
cases  arising  out  of  the  company's  negligence  in  the  transmission  and 
delivery  of  messages.  It  is  a  general  rule  of  evidence  that  no  evidence 
is  admissible  save  such  as  is  material,  relative  and  pertaining  to  the 
allegations  contained  in  the  pleadings,  and,  in  a  case  arising  out  of 
negligence,  no  facts  can  be  alleged  in  the  pleadings,  as  a  general  rule, 
except,  such  as  are  descriptive  of  the  negligent  act.  The  first  ques- 
tion which  presents  itself  under  this  subject  is,  whether  or  not  the 
wealth  or  poverty  of  either  of  the  parties  should  be  shown  in  the 
case  ?  As  a  general  rule,  the  wealth  of  the  company  cannot  be  shown 
in  a  case  arising  out  of  its  negligent  acts.  In  the  first  place,  it  is  not 
the  wealth  of  the  company  that  causes  the  negligent  act,  nor  the  in- 
jury arising  therefrom;  and  for  this  reason  the  pleadings  would  be 
demurrable  if  such  allegations  were  contained  therein;  and  another 
reason  would  be,  if  this  fact  were  allowed  to  remain  in  the  bill  as 
material,  or  if  there  were  evidence  admitted  to  this  effect  over  the 
company's  objections,  it  would  have  the  tendency  to  prejudice  the 
jury  against  the  company.  But  if  the  negligent  act  of  the  company 
is  alleged  to  have  been  willful,  for  which  exemplary  or  punitive  dam- 
ages are  claimed,  the  wealth  of  the  company  may  be  shown.^"  This 
kind  of  damages  in  the  main  are  imposed  on  the  company  by  way  of 

"Ross  V.  West.  U.  Tel.  Co.  (C.  C.  West.  U.  Tel.  Co.,  CO  S.  C.  201.  38 
A.),  81   Fed.   676.  S.   E.   443. 

»»West.  U.  Tel.  Co.  v.  IMorris    (C.  C.  «>  West.  U.  Tel.  Co.  v.  Henderson,  89 

A.).    S.*?      Fed.      902;      Wallingford    v.       Ala.   510.   18   Am.   St.   Rep.    148.  7   So. 

419. 


314  TELEGRAPH  AND   TELEPHONE    COMPANIES.  [<§    327 

punishment  for  its  "willful  wrongs.  In  order  to  impose  the  proper 
punishment  to  meet  the  injury  inflicted,  the  wealth  of  the  company 
must  be  considered;  for  the  greater  the  wealth  of  the  latter,  the 
greater  must  be  the  damages  imposed.  The  most  successful  way  of 
punishing  these  and  other  corporations  for  their  willful  wrongs,  is  by 
awarding  damages  against  them  for  such  wrongs,  and  the  better 
remedy  in  deterring  the  commission  of  other  and  similar  wrongs  is 
by  awarding  damages  in  every  case  commensurate  with  their  wealth. 

§  328.     Same  continued — party  injured. 

Where  the  plaintiff  has  lost  a  great  bargain  in  a  contract  of  sale  of 
property,  by  the  company  negligently  delaying  a  message  concerning 
such  sale_,  the  evidence  of  the  embarrassed  financial  condition  of  the 
sendee  is  not  admissible.*^  ^  ISTeither  could  he  show  the  condition  of 
his  family,  nor  his  future  prospects  in  other  lines  of  business;  but 
only  such  evidence  could  be  admitted  as  pertained  to  the  negligent 
act  of  the  company.  It  seems,  however,  that  where  the  negligent  act 
has  been  willful,  he  may  show  his  wealth  and  standing  or  reputation. 
Almost  the  same  reasons  may  be  given  why  the  wealth  or  reputation 
of  the  plaintiff  should  be  shown  as  those  stated  above,  in  the  admis- 
sibility of  evidence  of  the  wealth  of  the  company.  Damages  in  the 
way  of  compensation  for  a  willful  wrong  of  the  company  to  a  man 
of  limited  means  or  of  small  reputation,  would  not  be  sufficient  for  a 
man  of  greater  wealth  or  more  extensive  reputation.  Therefore,  in 
considering  the  amount  of  damages  to  be  awarded  for  a  willful  act 
of  the  company  in  the  transmission  of  messages  intrusted  to  its  care, 
the  wealth  or  reputation  of  the  plaintiff  may  be  shown  in  order  to 
arrive  at  a  proper  amount  of  damages. 

§  329.     Declaration  of  agents. 

The  general  principle  of  law  with  respect  to  the  admissi- 
bility of  statements  and  declarations  of  agents  as  against  their  prin- 
cipals, are  applicable  here.  Therefore,  statements  or  declarations 
of  agents  or  employees  of  these  companies  are  inadmissible  as  evi- 

«^West.  U.  Tel.  Co.  v.  Way,  83  Ala. 
542,  4  So.   844. 


■^    330J  NEGLIGENCE.  315 

dence  against  the  company,  unless  the  same  is  made  while  acting 
within  the  scope  of  their  duties,  at  the  time  when  the  negligent  act  is 
alleged  to  have  been  committed,  and  is  made  with  reference  to  such 
act.  In  other  words,  the  declaration  or  statement  must  be  part  of 
the  res  gestae. ^^  Thus,  a  statement  made  by  an  agent  of  a  telegraph 
company  is  not  competent  as  against  the  company,  to  prove  that  a 
message  was  not  transmitted,  when  not  made  in  the  performance  of 
any  duty  relating  to  its  transmission/'^  But  a  statement  that  the  mes- 
sage had  not  been  delivered,  made  in  answer  to  an  inquiry,  has  been 
held  to  be  admissible  as  a  "part  of  the  same  transaction,"  and  not  re- 
lating to  past  occurrences.*"'"  Every  statement  or  declaration  of  an 
agent  of  these  companies,  telling  how  the  negligent  act  was  com- 
mitted, and  made  at  or  during  the  time  of  such  commission,  is  admis- 
sible as  being  that  of  the  company,  to  show  how  the  same  was  com- 
mitted. Thus,  the  statement  of  the  company's  messenger  that  he 
cannot  find  the  addressee — who  is  the  party  injured — and  made  at 
the  time  he  is  looking  for  the  addressee,  is  admissible  against  the 
company ;  '^^  or  any  statement  made  by  the  messenger  concerning  the 
contents  of  the  message,  and  which,  it  was  claimed,  the  company 
Avrongfully  and  negligently  disclosed,  and  made  at  the  time  the  mes- 
senger was  delivering  same,  is  admissible  against  the  company  to 
show  that  the  contents  of  the  message  were  negligently,  disclosed.^'' 

§  330.     Subsequent  acts  of  company — of  plaintiff. 

Any  act  of  the  company  made  through  its  agents,  and  after  the 
time  the  negligent  act  of  the  company  is  claimed  to  have  been  com- 
mitted, and  not  connected  with  said  negligence,  cannot  be  shown 
against  the  company  in  an  action  against  it  for  damages  caused  by 
such  neglect.  Thus,  in  an  action  against  a  telegraph  company  for 
neglifi-ence  in  the  transmission  of  a  message,  evidence  is  inadmissible 
against  the  company  to  show  that,  because  of  the  alleged  negligence. 

■"  Sweetland  v.  Illinois,  etc.,  R.  Co.,  Iowa     210,  71   N.  W.  210.     See.  also. 

27   Iowa  433,   1   Am.  Rep.  285.  Garland  v.  West.  U.  Tel.  Co.,  118  Mich. 

«•  Aiken  v.'  West.   U.   Tel.   Co..    5   S.  300,   76  N.   W.   762,   74  Am.   St.  Rep. 

C.  358.  304,   43   L.   R.   A.   280;    West.   U.  Tel. 

"West.  U.  Tel.  Co.  v.  Way,  83  Ala.  Co.  v.  Lydon,  82  Tex.  364. 

542,  4  So.  844.  "'West.    U.    Tel.    Co.    v.   Bennett.   1 

•"Evans   v.    West.    U.    Tel.    Co.,    102  Tex.  Civ.  App.  558,  21  S.  W.  690. 


316  TELEGRAPH    AND   TELEPHONE    COMPANIES.  [§    330 

one  of  its  officers  made  a  deduction  from  the  pay  of  one  of  its  opera- 
tors.^* Or,  if  one  of  the  operators  was  discharged  a  few  days  after 
the  negligent  act ;  or,  if  new  and  different  machinery  or  instruments 
were  substituted  for  those  in  use  at  the  time  of  the  act,  these  facts 
could  not  be  sho\vn  in  evidence  against  the  company  in  an  action  for 
the  negligent  act  But  any  subsequent  act  of  the  plaintiff  toward  the 
company,  disconnected  with  the  business  transaction  in  which  the 
negligent  act  is  claimed  to  have  been  committed,  yet  in  the  further- 
ance of  the  consummation  of  such  business,  may  be  admitted  to  show 
the  negligence  of  the  company;  as,  where  the  sender  sends  a  second 
message  to  the  operator  at  the  destination  of  the  first  message  with 
instructions  to  deliver  the  first,  this  act  of  the  plaintiff  may  be  ad- 
mitted to  show  the  negligent  delay  in  delivering  the  first.^^  And  it 
has  further  been  held,  that  evidence  could  be  admitted  to  show  that 
the  plaintiff  sent  another  message  at  the  same  time  to  the  same  place 
— but  to  another  person — and  received  a  reply  to  same,  in  order  to 
show  that  the  company  was  guilty  of  negligence  in  transmitting  and 
delivering  the  first. '^'^ 

§  331.     Evidence  of  plaintiff's  good  faith — erroneous  messages. 

When  a  message  has  been  erroneously  transmitted  and  acted  on  by 
the  plaintiff  to  his  injury,  any  evidence  as  to  his  understanding  of 
the  message  may  be  admitted  for  the  purpose  of  showing  his  good 
faith  in  relying  on  it,  as  understood,  and  that  he  acted  on  the  basis 
of  that  understanding.  Thus  the  plaintiff,  who  receives  in  reply  to  a 
message  to  his  stockholder  a  message  stating  the  price  of  cattle,  and 
buys  according  to  his  understanding  of  the  message  in  such  a  way  as 
to  make  a  profit  on  them,  may  introduce,  as  evidence,  the  telegram  re- 
ceived, to  show  whether  or  not  the  error  was  such  as  would  lead  a 
careful  and  prudent  man  to  act  thereon  as  he  acted,  and  thereby  to 
show  his  good  or  bad  faith.''^^  And  where  the  meaning  of  a  telegram 
is  couched  in  such  terms  as  to  be  ambiguous  to  persons  not  engaged  in 
the  same  business  as  that  of  the  plaintiff,  it  may  be  explained  by  the 

«»Cock  V.  West.  U.  Tel.  Co.,  36  So.  ">  West.     U.  Tel.   Co.  v.  Frith,     105 

(Miss.)   392.  Tenn.  167,  58  S.  W.  118. 

«*Grinnell  v.  West.  U.  Tel.  Co.,  113  "West.     U.   Tel.   Co.  v.   Lydon,     82 

Mass.  299,  18  Am.  Rep.  485.  Tex.  364,  18  S.  W.  701. 


<§,    332]  NEGLIGENCE.  317 

testimony  of  the  sender  J-  Thus,  evidence  as  to  the  price  of  goods  in 
certain  markets  on  a  specified  day,  by  a  person  who  testifies  that  he 
knew  the  fact,  is  competent  to  go  to  the  jury  in  the  absence  of  evi- 
dence that  he  did  not  know  such  fact.  The  object  in  introducing  such 
latter  evidence  is  to  prove  that  the  price  had  advanced  in  the  mean- 
time, and  that  plaintiff  was,  therefore,  obliged  to  pay  a  higher  price 
than  would  have  been  necessary  had  the  first  message  iDcen  sent 
prom])tly. 

§  332.     Same  continued — other  cases. 

In  an  action  against  a  telegraph  company  for  failure  to  deliver  a 
message,  if  the  defendant  attempts  to  justify  itself  under  the  plea 
that  the  plaintiff  was  an  obscure  and  unknown  person,  the  latter  may 
iestify  as  to  the  nature  of  his  business.  He  may  tender  and  introduce 
in  evidence  business  cards,  letterheads,  and  envelopes  (particularly 
after  he  has  testified,  without  objection,  that  he  so  used  them),  for 
the  purpose  of  showing  that  he  had  used  the  ordinary  means  of  ad- 
vertising himself,  and  that  defendant,  in  the  exercise  of  reasonable 
diligence,  might  have  found  some  person  who  could  give  information 
as  to  his  address."^^  Evidence  of  the  proximity  of  the  place  of  busi- 
ness and  the  residence  of  the  plaintiff  to  the  office  to  w^hich  the  mes- 
sage was  transmitted,  and  that  it  could  have  been  forwarded  to  him 
from  either  place  in  time  to  prevent  the  loss,  is  competent.'^^  Where 
the  message,  on  which  suit  is  brought  for  failure  to  deliver,  was  ad- 
dressed to  a  physician,  the  company  cannot  introduce  evidence  in  its 
defense  that  it  was  the  custom  of  such  physician  not  to  make  certain 
calls  without  prepayment  of  his  professional  charges."^  ^  Since  it  is 
not  right  for  these  companies  to  speculate  on  the  chances  that  such 
summons  will  or  will  not  be  obeyed,  they  cannot,  therefore,  introduce 
evidence  respecting  such  speculations.'^^'     Letters  and  statements  of 

"Aiken    v.    West.    U.    Tel.    Co..    69  "*  Gulf,    etc.,    R.    Co.    v.    Wilson,      69 

Iowa  31,  58  Am.  Rep.  210,  28  X.  W.  Tex.  739,  7  S.  W.  653. 

419.  "West.     U.  Tel.  Co.  v.     Woods,     56 

"West.  U.  Tel.     Co.  v.     Collins,  45  Kan.  737,  44  Pac.  989. 

Kan.    88,    25    Pac.    187,    10    L.    R.    A.  "  West.  U.  Tel.  Co.  v.  Henderson,  89 

515n.     See,  also,  Garland  v.  West.  U.  Ala.  510,  7   So.  419,   18  Am.  St.  Rep. 

Tel.   Co.,    118   Mich.    369,   74   Am.    St.  148. 
Rep.   394,  43   L.   R.   A.  280.  76   N.   W. 
762. 


31S  TELEGKAPII   AXD   TELEPHONE   COMPANIES.  [§    33^ 

the  addressee  as  to  the  reasons  for  liis  failure  to  purchase  stock  for 
the  plaintiff,  ordered  by  letter  and  telegram,  have  been  held  to  be  in- 
admissible in  any  action  for  failure  to  deliver  the  telegram.'"  Wheu 
a  telegraph  company  contracts  to  furnish  an  oil  broker  with  accurate 
quotations  of  prices  of  oil,  and  to  transmit  his  message  for  pur- 
chases and  sales,  he  may  show,  when  sued  on  the  contract,  the  quota- 
tions furnished  and  directions  given  in  reliance  thereon.''^  And  his 
testimony  as  to  purchases  and  sales  made  under  such  directions,  at 
places  where  he  was  not  personally  present,  is  admissible,  and  cannot 
be  excluded  under  the  rule  requiring  the  production  of  the  best  evi- 
dence, as  the  purpose  of  the  rule  is  to  exclude  evidence  merely  sub- 
stitutional in  its  character.'^^  On  failure  to  deliver  a  message,  it  is 
not  error  to  exclude  evidence  Avhich  shows  that  the  message  was  sent 
by  telephone,  where  it  was  not  delivered.^*^ 

"West.     U.  Tel.  Co.  v.     Cooper,  71  ''"West.  U.    Tel.    Co.    v.    Stevenson^ 

Tex.  507,  9  S.  W.  598,  10  Am.  St.  Eep.  128  Pa.  St.  442,  15  Am.  St.  Rep.  687, 

772,  1  L.  R.  A.  728.  5  L.  R.  A.  515,  18  Atl.  441. 

"U.   S.  Tel.  Co.  V.   Wenger,  55   Pa.  ^MYest.  U.  Tel.  Co.  v.  Jones,  13  So. 

St.   262,   93   Am.   Dee.   751.  (Miss.)   471. 


CHAPTER  XV. 

LIABILITIES  AS  AFFECTED  BY    RULES  AND  REGULATIONS. 

§  333.  Right  to  make  reasonable  regulations — in  general. 

334.  Must  be  reasonable. 

335.  Must  be  reasonably  applied. 

336.  Same  continued — reasonableness — who  should  decide. 

337.  Distinction  between  by-laws  and    rules  and    regulations    or 

resolutions. 

338.  Same  continued — particular  regulations. 

339.  Information  as  to  meaning  of  message — can  not  demand. 

340.  Delivery  at  company's  ofl&ce — reasonable. 

341.  Prepayment  of  charge — reasonable  regulation. 

342.  Extra  charges  for  delivering  beyond  free-delivery  limit — not 

always  reasonable. 

343.  Deposit  for  answer — not  always  reasonable. 

344.  May  waive  prepayment. 

345.  Regulation  of  office  hours. 

346.  Same  continued— statutory  penalty  for  delay— hours  not  the 

same. 

347.  Reasonableness  of  the  rule. 

348.  Same  continued — waiver  of  regulations. 

349.  Employees  need  not  be  informed  of  other  office  hours. 

350.  Office  hours  as  affects  company's  duty— night  message. 

351.  Knowledge  of  sender  as  to  office  hours. 

352.  Telephone  companies — enforcement  of  tolls. 

353.  May  waive  regulations. 

§  333.     Right  to  make  reasonable  regulations — in  general. 

It  gives  Its  pleasure  to  discuss,  at  some  length,  the  right  of  tele- 
graph companies  to  make  reasonable  regulations  for  the  purpose  of 
conveniently  performing  their  duties  toward  the  public  and  the  ef- 
fect they  have  upon  their  rights  and  liabilities.  It  is  an  unquestion- 
able fact  that  these  companies  have  the  same  right  as  any  other  cor- 
poration or  private  individual,  to  prescribe,  adopt  and  enforce  all 
reasonable  rules  and  regulations  for  the  purpose  of  conveniently  dis- 
charging their  duties.^     In  fact,  it  would  be  impossible  for  them  to 

'Hewlett  v.  West.  U.  Tel.  Co.,  28  ney  v.  New  York,  etc.,  Printing  Tel. 
Fed.  181;  True  v.  International  Tel.  Co.,  IS  Md.  341,  81  Am.  Dec.  607; 
Co.,  60  :Mc.  0.   11   Am.  Rep.   15G;   Bir-       West.  U.  Tel.  Co.  v.  Neal,  86  Tex.  308, 

(319) 


320  TELEGRAPH   AND   TELEPHONE   COMPANIES.  [§    333 

carry  on  their  business  with  any  amount  of  safety,  either  to  them- 
selves or  to  those  with  whom  they  may  deal  without  clothing  them- 
selves with  these  rights,  with  which  all  must  comply.  It  may  be  said 
that  it  is  one  of  their  inherent  rights,  by  means  of  which  they  may 
perform  and  carry  out  the  objects  for  which  they  were  incorporated. 
There  is  a  limit,  however,  to  the  extent  to  which  they  may  exercise 
these  rights.  They,  being  institutions  having  a  legal  entity  and 
thereby  assuming  public  functions,  cannot  prescribe  and  enforce  a 
rule  which  would  release  them  from  liability  for  any  act  of  negli- 
gence of  their  servants  or  employees ;  ^  nor  would  any  of  their  regu- 
lations be  binding  which  would  infringe  upon  public  policy,  or  be  in 
conflict  with  the  general  principles  of  the  common  law ;  and  yet  they 
may  limit  to  a  certain  extent  their  common-law  liability.^  It  has 
long  been  a  controverted  fact  as  to  whether  or  not  they  could  enforce 
a  rule  against  one  of  their  patrons  who  had  no  knowledge  of  the  ex- 
istence of  such  a  rule;  but  a  number  of  these  rules  which  we  are 
specially  discussing  are  to  be  found  in  full  on  the  blank  forms  fur- 
nished to  their  customers,  and  on  which  messages  are  required  to  be 
written.  When  the  fact  of  the  knowledge  of  these  particular  rules 
is  in  question,  it  is  presumed  that  the  patron  has  knowledge  of,  and 
gives  his  assent  to  them,  when  he  signs  the  telegram.  He  will  be 
bound  by  any  other  rule  or  regulation  of  which  he  has  knowledge,  or 
of  which  he  is  presumed  to  have  knowledge,  and  to  which  he  has  di- 
rectly or  indirectly  assented.* 

§  334.     Must  be  reasonable. 

The  rules  and  regulations  adopted  by  these  companies  must  be 
reasonable  and  not  such  as  would  relieve  them  of  the  obligations 

25    S.   W.    15,   40   Am.    St.   Rep.    847 ;  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437 ; 

West.  U.  Tel.   Co.  v.  McMillan,  30  S.  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421, 

W.  298;  Bartlett  v.  West.  U.  Tel.  Co.,  14  Am.   Rep.   38,   74   111.    168,   24  Am. 

62  Me.  209,   16  Am.  Rep.  437;    West.  Rep.  279.     But  see  contra  Grennell  v. 

U.  Tel.  Co.  V.  Jones,  95  Ind.  228,  48  West.  U.  Tel.   Co.,    113  Mass.  299,   18 

Am.  Rep.  713;    West.    U.    Tel.  Co.  v.  Am.   Rep.   485;      Becker     v.   West.  U. 

Buchanan,    35    Ind.    429,  9  Am.  Rep.  Tel.  Co.,  11  Neb.  87,  38  Am.  Rep.  356, 

744.  7  N.  W.  867. 

2  True   V.   International   Tel.   Co.,   60  *True  v.  International,  etc.,  Tel.  Co., 

Me.   9,   11  Am.  Rep.    156;    Hibbard  v.  60  Me.  9,  11  Am.  Rep.   156. 

West.    U.    Tel.    Co.,    33    Wis.  558,   14  *Id. 
Am.  Rep.  775;     Bartlett     v.  West.  U. 


<§    334]  LIABILITIES RULES   AND   KEGULATIOXS.  321 

which  liiw  and  public  policy  imposes.^  '-i^^lify  have  become  one  of  the 
most  iui])i»rtant  factors  in  the  commercial  world,  hj  means  of  which 
the  most  im{)ortant  business  transactions  are  beino-  consummated  and 
with  far  iireater  celerity  than  by  any  other  means  or  device  known. 
'I'liey,  having  plac(<l  themselves  before  the  people  as  public  servants, 
always  ready  and  willing  to  be  the  means  or  instruments  of  perform- 
ing with  reasonable  diligence  and  care  and  within  the  shortest  pos- 
sible' lime,  all  such  business  as  may  be  intrusted  to  them,  should  for 
this  rcnsdii  pr(i\iilc  thcinsclvcs  witli  proper  instruments  and  skilled 
operators.  The  public  may,  and  does,  regulate  many  other  affairs  re- 
specting the  manner  in  which  they  shall  construct  and  manage  their 
business;  but  it  is  not  within  its  power  to  say  who  shall  operate  and 
control  th(^  management  of  telegraph  instruments ;  and  yet  it  may 
jirohibit  these  companies  from  enforcing  regulations  which  tend  to 
relieve  them  from  liabilities  caused  by  negligent  acts  of  such  opera- 
tors. With  respect  to  who  shall  operate  the  instruments  in  transmit- 
ting messages,  the  sender  is  wholly  and  entirely  at  the  mercy  of  the 
company.  And  further,  messages  which  are  to  be  sent  on  these  lines 
are,  as  a  general  rule,  prepared  and  delivered  to  the  company  on  very 
short  notice,  and  it  becomes  the  most  earnest  desire  of  tlie  sender  that 
they  be  innnediately  transmitted  and  promptly  delivered;  for,  in 
them,  much  may  be  at  stake,  and  so  a  failure  to  make  haste  and  dili- 
gent effort  to  deliver  iheni  at  their  destination,  niiiiht  mean  financial 
ruin,  or  even  a  greater  loss,  to  either  the  sender  or  he  to  whom  the 
message  is  addressed.  Then,  to  say  that  these  companies  may  re- 
lieve themselves  from  all  or  any  of  these  responsibilities,  when  the 
])ublic  is  at  the  mercy  of  tlicni  in  this  respect,  and  at  a  time  when  it 
])erhaps  would  not  be  in  a  condition  to  refuse  oi^enly  to  assent  to 
such  rules  and  regulations  would  be  unjust  and  therefore  against 
public  policy.^  The  effect  of  these  regulations,  with  respect  to  these 
companies  atteni])ting  to  enforce  them  against  any  particular  indi- 
vidual who  may  ap]>ly  to  the  former  for  their  services,  is  not  limited 

=  Ellis   V.   American   Tel.   Co.,   13   Al-  4(il.  15  Am.  Rep.  917,  4  L.  R.  A.  Olln. 

liMi    (:Ma^^.)    •22(1;   \Yest.  U.  Tel.  Co.  v.  17   Atl.  736. 

Oii.>\vold.    37    Ohio     St.    313,     41     Am.  ^' True   v.    International    Tel.   Co..    t?0 

Rep.    500;    West.   U.   Tol.    Co.   v.   Rev-  :Mo.    !>.    11    Am.    Rep.    156;    West.    V. 

nolds,   77   Va.    173.   46   Am.  Rep.   715;  Tol.   Co.   v.   Reynolds.   77   Va.    173,    40 

Oillis   V.   West.     V.     Tel.     Co.,    61    Vt.  Am.  Rep.  715. 
T.  &  T.— 21 


322  TELEGRAPH   A^'D   TELEPHONE    COMPANIES,  [<^    334 

to  such  person;  but  they  also  affect  the  public,  and  are  therefore 
against  public  policy,  because  they  take  from  the  public  a  part  of  the 
security  it  otherwise  would  have  J 

§  335.     Must  be  reasonably  applied. 

These  rules  and  regulations  must  not  only  be  reasonable,  generally, 
but  they  must  be  such  as  can  be  reasonably  applied,  under  the  special 
circumstances  of  any  particular  case,  and  while  they  may  ordinarily 
be  reasonable,  yet  they  may  operate  unreasonably  in  a  particular 
case ;  ^  so,  in  such  a  case,  they  will  not  be  enforced.  As  was  very 
ably  said  by  an  eminent  court,  while  discussing  this  point :  "Reason- 
able regulations  of  public  corporations  like  these  must  be  reasonably 
applied,  and  a  rule  which  is  generally  fair,  may,  under  special  cir- 
cumstances, become  oppressive  and  unreasonable  as  applied  in  the 
particular  case;  and  so  these  corporations  must  exercise  ordinary 
prudent  discretion  in  relaxing  their  regulations."  ^  This  is  ably  il- 
lustrated by  Judge  Hammond,  in  a  case  arising  out  of  the  unrea- 
sonableness of  a  regulation  requiring  a  prepayment  of  the  charges  for 
an  answer  to  a  telegram,  sent  by  a  poor  person,  who  notified  the  com- 
pany of  his  destitute  circumstances.  In  a  case  of  this  nature,  the 
court  held  that  this  rule  should  be  relaxed  and  not  enforced  as  where 
the  sender  were  able  to  prepay  for  the  answer.  ^^ 

§  336.     Same  continued — reasonableness — who   should  decide. 

After  considering  the  fact  that  these  companies  may  prescribe, 
adopt  and  enforce  all  necessary  rules  and  regulations  for  the  conven- 
ient performance  of  their  duties,  and  that  the  same  to  be  binding 
must  be  reasonable,  the  question  which  necessarily  follows  is,  Wlio 
must  determine  the  reasonableness  of  these  rules  and  regulations  ? 
These  companies,  surely,  cannot  say  that  they  are  or  that  they  are 
not  reasonable ;  ^^  then,  it  should  be  decided  either  by  the  court  or  by 
a  jury,  or  by  both.     Some  courts  have  held  that  it  was  a  question  of 

'Telegraph  Co.  v.  Griswolrl,  37  Ohio  "Id. 

St.  301,  41  Am.  Rep.  500.  '"Id. 

» Hewlett    V.    West.    U.    Tol.    Co..    28  "True  v.   International   Tel.   Co.,   f>0 

Fed.  181.  Me.    9,    11    Am.   Rep.    160. 


§    337]  LIAlUiaTlES RULES    AND   REGULATIONS.  '-'y2Z 

fact  to  be  decided  by  a  jurj.^-  But  it  seems  that  this  should  be  a 
question  of  law  for  the  court  to  decide,  if  any  iixed  and  jjermanent 
regulations  are  to  be  established ;  and  the  better  authorities  are  in 
accord  with  this  holding,  for  the  reason  that  a  jury  in  one  case  may 
hold  a  certain  rule  reasonable,  while  another  jury  in  another  case 
might  hold  the  same  rule  unreasonable.'^  The  circumstances  in  no 
tAvo  cases  are  always  similar  throughout.  And  so,  where  the  facts 
pertaining  to  the  rule  in  question  arc  in  dispute,  some  courts  hold 
that  the  question  of  the  reasonableness  of  the  iiile  is  a  matter  for  the 
jury  under  proper  instructions  from  the  court,  as  a  mixed  question  of 
law  and  fact,  and  that  it  is  never  a  question  for  the  court  except  when 
the  facts  are  undisputed.  ^^  We  are  inclined  to  believe  that  the  lat- 
ter holding  is  the  correct  one.  That  is,  when  the  reasonableness 
of  the  rule  depends,  in  the  particular  instance,  upon  disputed  facts, 
it  is  a  mixed  question  of  law  and  fact ;  but  if  the  facts  are  not  dis- 
puted, it  is  clear,  both  upon  principle  and  according  to  the  weight 
of  authority,  that  the  question  is  one  of  law  for  the  court. '^ 

§  337.     Distinction  between  by-laws  and  rules  and  regulations  or 
resolutions. 

In  this  country,  there  is  clearly  a  distinction  between  the  by-laws 
of  the  company — which  are  adopted  for  the  purpose  of  regulating  and 
controlling  the  business  affairs  of  the  company  with  its  servants  and 
employees,  and  which  can  only  be  adopted  by  the  stockholders  or  by 
the  directors,  when  this  right  is  delegated  to  them — and  the  rules 
and  regulations  which  are  adopted,  generally,  by  some  officer  or  ser- 
vant of  the  company  to  be  enforced  against  all  who  apply  to  it  for 

"  State  V.  Overton,  24  N.  J.  L.  435 ;  '■*  Id. 

Morris,  etc.,  K.  Co.  v.  Ayres,  29  N.  J.  '^^  St.    Louis,   ete.,    R.    Co.   v.    Hardy. 

L.  393';   State  V.  Choven'  7  Iowa  204;  .55  .\rk.  134,  17  S.  W.  711;  Old  Colony 

Tex.,  etc..   K.   Co.   v.   Adams,   78   Tex.  V^.  Co.  v.  Tripp,  147  Mass.  35,  17  N.  E. 

372,  14  S.  W.  666 ;  Prather  v.  Railway  S9 ;  Louisville,  etc.,  R.  Co.  v.  Fleming, 

Co.,  80  Ga.  427,  9  S.  E.  530;  Heimann  II   Lea.    (Tenn.)    128;   Wolsey  v.  Rail- 

V.  West.  U.  Tel.  Co.,  57  Wis.  562,   16  r.a.l    Co.,   33   Ohio    St.   227;    Hoffbaur 

X.  W.  32.  V.  Railway  Co.,  52  Iowa  342,  3  N.  W. 

"Com.   V.     Power,    7    Met.     (Mass.)  121:    Shepherd   v.   Gold,  etc.,   Tel.   Co.. 

596;   Pitt^burlr  &  R.  Co.  v.  Lyon,   123  38     Hun       (N.     Y.)      338;     Smith     v. 

Ra.    St.    140,    10   Am.    St.   Rep.    517,   2  Cold,  etc.,  Tel.   Co.,   42  Hun     (N.   Y.) 

L.  R.  A.   4S0,   16  Atl.  607.  454. 


3--i  TELEGKAPII   AXD    TELEPHO^^E    COMPANIES.  [<§    337 

services,,  for  the  purpose  of  coiiveiiieiice  and  safety,  both  to  the  com- 
pany and  its  patrons.  A  by-law  is  adopted,  specially,  for  the  inter- 
nal management  of  the  company,  and  can  only  be  enforced  against 
the  company  and  its  employees,  and  those  who  transact  business  with 
the  former,  with  notice  of  such.  The  rules  and  ]-egulations,  on  the 
other  hand,  are  adopted,  more  especially  for  the  external  manage- 
ment of  the  company,  and  can  be  enforced,  when  reasonable,  against 
all  who  do  business  with  it.^"  These  rules  and  regulations  are  not 
to  be  understood  as  meaning  the  same  thing  as  resolutions  passed  by 
the  company,  in  that  the  latter  is  merely  an  act  of  temporary  enforce- 
ment against  some  particular  object  or  person.  They  are  adopted  not 
to  be  enforcible  against  the  public,  generally,  at  all  times,  but  are 
passed  at  some  of  the  directors'  meetings  as  a  temporary  enforce- 
ment against  some  particular  person  or  thing.  ^'^ 

§  338.     Same  continued — particular  regulations. 

Should  the  company  adopt  a  rule  providing  for  all  messages  to 
be  delivered  to  it  in  writing,  the  same  would  be  reasonable;  and, 
should  the  company  refuse  to  accept  the  message  for  this  reason,  it 
would  not  be  liable  for  any  injury  caused  by  the  message  not  being 
transmitted.^®  However,  if  the  company  were  to  accept  the  message, 
and  be  paid  for  its  transmission;  or  if  it  had  been  in  the  habit  of 
receiving  oral  messages — or  messages  over  the  telephone  ^^ — for 
transmission,  and  refuse  to  transmit,  it  would  be  liable  for  any  in- 
jury arising  thereby.-'^*  The  message  should  be  fully  and  clearly 
written, ^^  without  the  use  of  numerals,  when  delivered  to  the  com- 
pany, and  in  the  language  prevailing  at  the  place  where  the  contract 
is  made;  since  the  company  has  no  right  to  change  the  message,^^  so 
as  to  make  it  clearer,  and  that,  too,  at  the  request  of  the  sender.^'^ 

''State  V.  Overton,  24  N.  J.  L.  435,  '"West.   U.  Tel.   Co.   v.   Dozior,  7   So. 

01  Am.  Dec.  671;   Morris,  etc.,  R.  Co.  (Miss.)    ,325. 

V.    Ayres,   29    X.    J.    L.    393;    Com.    v.  =' Primrose   v.    West.    V.    Tel.    Co.,    9 

Power,  7  Met.  596.  Am.  P.  &  Cor.  Rep.  722. 

"  10  Cyc,  p.   3.50.  '^  Pegram  v.   West.    L'.   1V1.   Co.,    100 

"West.   U.  Tel.  Co.  v.  Wilson,  9  So.  X.  Car.  28,  6  S.  E.  770,  G  .\m.  St.  Rep. 

(Ala.)     415;     Cumberland    Tel.  Co.    v.  .557. 

Sanders,  35  So.    (Miss.)    653.  ==  West.    U.    Tel.    Co.    v.     Foster,     64 

"Texas,  etc.,  Tel.  Co.  v.   Sieders,  29  Tex.  220,  53  Am.  Rep.  754. 
S.  W.  258. 


<^    339]  LIABILITIES IJLLKS    AXD    REGULATIONS.  325 

The  company  maj  require  that  tlie  messages  shall  not  only  be  written 
lc;j,ibly  but  that  they  shall  not  contain  any  immoral  or  indecent  lan- 
guage;  -■*  nor  be  such  as  would  subject  the  company  t<j  an  action  of 
libel  or  to  a  criminal  prosecution.  If  the  message  relates  to  any  gamb- 
ling contract,  the  company  may  refuse  to  accept  it  for  transmission 
and  any  rule  adopted  by  such  company,  whereby  it  is  prescribed 
that  such  messages  shall  not  be  accepted,  is  reasonable.  But  a  com- 
l)any  acts  upon  its  peril  when  it  refuses  to  accept  such  messages,  and 
should  it  be  mistaken  or  misjudge  the  tenor  or  purposes  of  the  mes- 
sages, it  will  be  held  responsible  to  the  injured  party  for  any  dam- 
ages sustained  by  reason  of  a  refusal  to  accept  them.-^  Every  mes- 
sage should  have  the  signature  of  the  sender,  yet  it  has  been  held 
that  a  company  could  not  enforce  a  rule  that  all  messages  tendered 
for  transmission  shall  liear  the  aut(>gra])h  signature  of  the  sender,  un- 
less a  powder  of  attorney  from  him  is  produced.  This  holding,  how- 
ever, was  in  a  case  in  which  the  message  was  tendered  by  a  connect- 
ing line,^^  and  in  view  of  the  fact  that  these  companies  are  often  lia- 
ble for  forged  messages,  it  may  be  well  to  question  whether  it  may 
not  enforce  such  rognlntiou.-' 

§  339.     Information  as  to  meaning  of  message — can  not  demand. 

Where  a  message  is  ambigmous  on  its  face,  the  company  cannot 
demand  of  the  sender  that  it  be  informed  of  the  nature  and  purport 
of  the  message.  It  cannot,  therefore,  enforce  a  regulation  which  pro- 
vides that  the  patrons  shall  inform  its  operators  of  the  true  meaning 
of  every  message  tendered  it  for  transmission.^^  The  messages  must 
be  clearly  and  legibly  written  out,  and  this  is  all  that  is  necessary  in 
order  for  the  operator  to  be  able  to  transmit  it  in  the  language  in 
Avhich  it  is  tendered.  It  is  not  necessary  for  him  to  know  the  mean- 
ing of  the  message  to  be  able  to  transmit  it  correctly.  "A  regulation 
of  this  description  would  simply  seek  to  pry  into,  Avithout  cause,  the 

"West.  U.  Tel.   Co.  v.   Ferguson.   57  "West.   U.  Tel.   Co.  v.   Ferguson,  57 

Ind.     495;      Arclianibanll       v.       Groat  Infl.   495. 

Northwestern    Tel.    Co.,    14    Quebec     8.  'West.   U.  Tol.   Co.  v.  Ferguson,  57 

"Smith    V.    West.    U.     Tel.     Co.,     84  I  ml.    495.   approved   in   Gray   v.    West, 

Ky.  604.  2  S.  W.  483.  T.    Tel.    Co.,   87    Ga.    350.   27    Am.   St. 

^-'Atlantic,  etc.,  Tel.  Co.  v.  West.  U.  ISep.    257,    14    L.    E.    A.    95,    13    S.    E. 

Tel.  Co..  4  Dalv   (X.  Y.)    527.  5(i2. 


326  TELEGRAPH   AjSTD   TELEPHONE    COMPANIES.  [^    339 

private  affairs  of  those  "who  wish  to  employ  the  company,  and,  in  its 
tendency  to  check  the  unreserved  communication  of  intelligence  by 
telegraph,  would  be  peculiarly  inconsonant  with  public  policy."-'*^ 
If  the  company  should  be  subjected  to  a  civil  action,  or  to  a  criminal 
prosecution,  for  transmitting  certain  messages,  and  if  it  should  be 
in  doubt  as  to  whether  or  not  a  certain  particular  message  tendered 
for  transmission  w^ould  subject  it  to  one  of  these  actions,  and  as  the 
company  could  not  demand  information  of  the  meaning,  the  doubt 
should  be  construed  in  favor  of  the  company,  since  to  hold  other- 
wise, would  often  place  these  companies  in  an  unpleasant  attitude. 
So  no  rule  laid  down  by  the  company  can  be  so  stringent  and  enforci- 
ble,  as  that  the  parties  could  be  compelled  to  diviilge  the  meaning 
of  such  message ;  this  being  the  case,  the  company  should  receive  the 
benefit  of  every  ambiguous  telegram.  The  company  may  have  this 
right  against  the  sender  of  a  meaningless  telegram,  where  he  fails  to 
inform  its  agent  of  its  meaning.  And  if  the  company  is  guilty  of 
negligence  in  the  transmission  and  delivery  of  such  a  message, 
whereby  injury  has  been  incurred,  the  injured  party  could  only  re- 
cover nominal  damages.^^  So,  it  might  be  better  on  the  part  of  the 
sender,  to  voluntarily  give  such  information,  even  when  he  cannot 
be  compelled  by  the  company  to  do  so. 

§  340.     Delivery  at  company's  office — reasonable. 

A  telegraph  company  may  provide  in  its  regulations  that  all  mes- 
sages shall  be  delivered  at  one  of  its  transmitting  oflSces.^^  Accord- 
ing to  such  regulation,  a  delivery  to  one  of  the  company's  messengers 
is  not  a  delivery  to  the  company,  unless  it  has  been  the  custom  of 
the  latter  to  consider  this  as  a  proper  delivery.  In  such  cases,  the 
messenger  acts  as  agent  for  the  sender,  in  that  particular  matter,  and 
not  for  the  company.^^  The  company,  doubtless,  is  better  posted 
about  the  working  order  of  its  lines  and  its  ability  to  transmit  mes- 
sages intrusted  to  it,  and  the  sender,  on  the  other  hand,  is  of  course, 
better  informed  as  to  the  contents  of  the  message;  should  there  be 

»Gray  on  Tel.,  p.  24.  Ga.  613,  44  Am.  St.  Rep.  95.  IS  S.  E. 

^See  title,    "Message  in    cipher  or       1008. 
otherwise  unintelligible."  ?^  West.  U.  Tel.  Co.  v.  Ferguson,  57 

"Stamey    v.    West.    U.   Tel.    Co.,  92       Ind.   495. 


1^    341]  T.IABILITIES RULES   AND   KEGULATIOXS.  327 

any  ambiguity  on  the  face  of  the  message,  the  latter  could,  if  he  were 
at  the  transmitting  office,  make  clear  the  ambiguities,  and  thereby 
aid  and  assist  the  operator  materially  in  making  a  correct  transmis- 
sion. If  the  company  could  be  forced  to  accept  the  message  as  given 
to  its  messenger,  it  could  not,  of  course,  have  him  present  to  explain 
the  meaning  of  the  message ;  and  yet  it  would  be  under  obligation  to 
transmit  it  in  its  ambiguous  state.^^ 

§  341.     Prepayment  of  charge — reasonable  regulation. 

A  regulation  of  these  companies,  which  provides  that  the  sender 
shall  prepay  all  the  charges  for  transmitting  and  delivering  mes- 
sages/^ is  reasonable  and  enforcible.  In  this  respect,  these  compan- 
ies are  similar  to  common  carriers  of  passengers,  in  that  each  may 
exact  of  its  patrons  a  prepayment  of  a  reasonable  compensation  for 
the  service  which  they  hold  themselves  out  to  the  public  as  ready  and 
willing  to  perform.  These  are  the  considerations  they  obligate  them- 
selves to  accept,  in  lieu  of  their  respective  public  duties  assumed. 
Like  all  other  contracts,  this  consideration  may  be  either  a  subsequent 
or  a  precedent  condition  to  the  performance  of  such  contract;  and 
whether  or  not  the  condition  is  either  precedent  or  subsequent  de- 
pends, as  in  other  contracts,  upon  the  custom  of  the  companies  or 
upon  the  expressed  agreement  to  that  effect.  The  consideration  of 
a  contract  for  the  transmission  of  a  telegram  is  generally  made  with 
respect  to  the  company's  rules  and  regulations  to  that  effect.  An  ex- 
pressed stipulation,  which  provides  that  this  consideration  shall  be 
a  condition  precedent  to  the  performance  of  its  duty — and  all  who 
apply  to  such  companies  for  services  are  presumed  to  have  notice  of 
such  a  condition — must  be  complied  with,  before  the  company  can 
be  forced  to  accept  the  message  for  transmission.  The  main  ground 
on  which  this  reason  is  founded  is  that  they  may  be  instrumental  in 
preventing  these  companies  from  suffering  a  probable  loss.  When 
parties  to  a  telegram  are  so  much  interested  in  a  business  affair  as  to 
seek  the  aid  of  a  telegraph  company — which  is  not  interested  in  the 

•»Gray  on  Tel.,  §   13.  811,   5   Am.    St.  Rep.    672:     Smith    v. 

"Langley  v.  West  U.  Tel.  Co..  88  Ga.  West.  U.  Tel.  Co.,  83  Ky.   104,  4  Am. 

777,  15  S.  E.  291;  Harkness  v.  West.  St.  Rep.   126. 
U.   Tel.    Co..   73    Towa    190,    34    X.    W. 


328  TELEGRAPH   AK^D   TELEPHONE    COMPANIES,  [§    341 

results  of  the  message — to  assist  them  in  coiisununatiiig  their  busi- 
ness arrangements,  it  is  more  reasonable  for  the  company  to  demand 
a  payment  of  the  charges  for  its  assistance  before  the  same  is  ren- 
dered; furthermore,  it  is  easier  to  collect,  then,  than  it  would  be  after 
the  services  have  been  rendered  and  after  the  interested  parties  have 
accomplished  their  desired  purposes.  In  other  words,  if  the  sender 
has  a  hesitancy  in  prepaying  the  company  for  its  services  rendered 
in  transmitting  a  telegram — and  in  the  performance  of  which  th(^ 
former,  doubtless,  is  much  more  interested,  than  the  latter — surely 
he  will  have  a  much  greater  hesitanqy  in  paying  for  same  after  the 
purposes  of  the  telegram  have  been  accomplished  and  possibly,  too, 
at  his  loss.-'^^ 

§  342.     Extra  charges  for  delivering  beyond  free-delivery  limit — 
not  always  reasonable. 

It  has  been  held  by  some  courts  that  a  rule  of  a  telegraph  company 
which  required  an  extra  deposit  by  the  sender,  or  a  guaranty  of  same, 
to  pay  for  the  delivery  when  the  addressee  lived  beyond  the  free  de- 
livery limit,  w'as  reasonable,  whether  or  not  the  sender  knew  of  the 
addressee's  residence  with  respect  to  the  distance  from  the  central  of- 
fice of  the  company.^*^  We  agree  with  these  authorities  that  this  is 
a  reasonable  rule  and  that  the  company  may  exact  of  the  sender  an 
extra  deposit  for  this  extra  service ;  provided,  the  sender  knew  that 
the  addressee  lived  beyond  the  free  delivery  limit,  otherwise  it  would 
not  be.  This  point  was  most  a1)ly  discussed  by  Judge  Gavin,  and 
it  gives  us  much  pleasure  to  quote  what  he  has  to  say  in  the  note 
below.  ^''' 

'•^  Gray  on  Tel.,  §  13.  pect  that  the   company  will   carry  the 

^  West.  U.  Tel.  Co.  v.  Henderson,  8!»  message    to    the    person    addressed,    if 

Ala.   510,  7   So.   419.    18   Am.   St.   Rep.  within    the    statutory   delivery   limits, 

148.  and   present  it   for   delivery.     If  there 

^  "Stich  a  regulation  as  we  are  now  bt   then   an  additional     sum     due,    the 

considering  would,   as   it   seems   to  us,  company  may  require   its  payment  be- 

be  harsh,  inequitable,  and  unnecessary.  fore   it  nurrenders  the  message  to  the 

When  the  patron  pays  to  the  company  sendee,    if   it   prefers   to   do   so    rather 

the  amount  which  he  believes,  in  good  than  rely  solely  upon  the  sender  for  its 

faith,  covers  the  entire  charge  for  the  jmyment.      The   company   Avill   thus   be 

service,    and    the    company    receives,  it  furnished  ample   protection,     and     the 

and  the  message,  he  has  a  right  to  ex-  expectations  and  purposes  of  the  send- 


<^    343]  LIABILITIES KULES   AND   RKGULATIONS.  329 

§  343.     Deposit  for  answer — not  always  reasonable. 

As  a  general  rule,  a  regulation,  Avliieh  imposes  the  duty  upon  a 
transient  person  to  deposit  a  sufficient  amount  of  money  with  the 
company  to  pay  for  as  many  as  ten  words  in  answer  to  his  telegram, 
is  reasonable;  yet  there  may  be  some  few  exceptions  to  the  rule.  The 
reason  of  the  rule,  in  one  case,  was  based  on  the  ground  that  it  was 
a  matter  of  social  etiquette,  due  by  the  sender  to  the  addressee,  that 
the  former  pay  for  the  answer  to  his  telegram.''^  ^Vliile  this  courtesy 
should  be  extended  to  the  addressee,  especially  when  these  telegrams 
are  concerning  the  business  of  the  sender,  yet  this  is  no  reason  why 
these  companies  should,  by  their  regulations,  enforce  the  laws  of  so- 
cial etiquette.^^  Almost  the  same  reason  given  for  holding  that  the 
company  may  exact  of  the  sender  a  prepayment  of  the  charges  for 
transmitting  the  original  message,  may  be  applicable  here.  The  nat- 
ural inference  is,  that  where  the  original  telegram  demands  an  an- 
swer to  the  business  matter  about  which  it  relates,  is  of  more  interest 
to  the  sender  than  it  is  to  the  addressee,  a  transient  man  with  the 
likelihood  of  being  at  another  place  when  the  answer  is  received  and 
at  a  place  where  it  could  not  conveniently  be  delivered,  the  company 
would  probably  lose  the  charges  for  the  answer,  and  for  this  reason 
the  company  may  enforce  this  regulation.  But  suppose  the  transient 
person  desires  that  the  answer  be  sent  to  another  place,  or  over  anoth- 
er line;  or,  suppose  he  is  a  tramp  or  a  person  in  destitute  circumstan- 

er  of  the  message  will  not  be  disap-  ei  would,  in  llic  most  of  those  few  in- 
pointed,  stances,  biiii^'  the  money  from  him. 
This  course  seems  to  use  to  aflord  a  If,  however,  the  company  might  occa- 
much  fairer  and  more  equitable  solu-  sionally  lose  a  deliverj'  charge,  the 
tion  of  the  problem  as  to  Avhat  is  the  loss  to  it  would  be  trifling  and  incon- 
duty  of  the  company  than  to  hold  that  siderable  when  compared  with  the  pos- 
it may  stop  the  message  half  way  up-  sible  loss  and  inconvenience  to  the  pub- 
on  its  course,  and  tlius  really  render  lie  and  patrons  who  have  relied  in 
to  the  sender  no  service,  after  receiv-  jjood  faith  upon  their  delivery  of  the 
ing  from  him  what  both  thought  to  be  message:"  West.  U.  Tel.  Co.  v. 
the  full  price  therefor.  We  apprehend  :^[oore,  12  Ind.  App.  13G,  54  Am.  St. 
that,   if   such   a  course   were   followed.  Rep.   519. 

there    would    be    few    instances  where  =«  Uost.   V.  T.l.   Co.  v.   McGuire,   104 

the  sendee  would  refuse  to  receive  the  Ind.    l.iO.    ."i4    .\m.    Hop.    200.    2    X.   E. 

message,  and   pay  the   delivery  charge.  201. 


if  proper. 


Hewlett   V.    West.    V.    Tel.    Co..   2* 


If  he  did,  a  notiticalion  to  the  send-        Vvd.    ISl. 


330  TELEGRAPH   AND   TELEPHONE    COIMPANIES,  [^    343 

ces,  which  acts  are  made  known  to  the  company's  operator.  Is  it  then 
presumed  that  these  regulations,  under  such  circumstances,  would  be 
reasonable?  Most  assuredly  they  would  not.  In  the  first  instance, 
it  would  be  an  act  of  courtesy  which  the  company  would  owe  its  pat- 
ron ;  in  the  second,  it  would  be  something  in  the  nature  of  an  act  of 
charity,  which  the  company,  however  being  a  person  only  in  the  con- 
templation of  law,  owes  to  the  poor  and  wayfaring ;  and,  in  either  in- 
stance, the  operator  should  not  refuse  the  request  of  such  persona. 

§  344.     May  waive  prepayment. 

While  a  company  may  enforce  the  rule  prescribing  a  prepayment 
of  the  charges,  yet  if  it  accepts  a  message  without  a  prepayment,  and 
without  notifying  the  sender  of  such  rule,  it  is,  nevertheless,  under 
obligations  to  the  former  to  transmit  and  deliver  the  message;  and 
on  a  failure  so  to  do,  the  company  cannot  use  this  as  a  defense  in  an 
action  against  it  for  a  negligent  transmission.'*^  And  should  a  com- 
pany accept  a  message  for  transmission  with  the  understanding  that 
the  charges  would  be  afterwards  paid,  it  is  compelled  to  send  the  mes- 
sage, notwithstanding  the  fact  that  it  has  a  nile  prescribing  a  pre- 
payment of  the  charges,  and  one  which  the  operator  could  not  in  any- 
wise disregard.*^  The  court  held,  in  a  case  in  which  the  sender  was 
an  employee  of  the  company,  that  it  was  duty  bound  to  transmit  his 
message  and  was  liable  for  a  failure  to  so  do,  even  though  the  com- 
pany offered  to  show  that  the  service  of  the  company  was  gratuit- 
ously tendered.*^  The  ground  on  which  these  rights  are  based  is,  that 
it  has  waived  all  rights  it  may  have  had. 

§  345.     Regulation  of  office  hours. 

Telegraph  companies  have  the  right  to  make  reasonable  regulations 
as  to  the  time  during  w^hich  their  offices  shall  be  open  for  the  dispatch 

*«  West.  U.  Tel.  Co.  v.  Cunningham,  Eep.   851.     See,  also,  Glovis  v.  Rhode 

90  Ala.  314,  14  So.  579.  Island  Hospital,  12  R.  I.  411,  34  Am. 

"West.  U.  Tel.  Co.  v.  Snodgrass,,  94  Rep.   675;   Gray    v.    Merrian,    148  111. 

Tex.   284,   60   S.    W.   308,   86   Am.    St.  179,  35  N.  E.  810,  39  Am.  St.  Rep.  172, 

Rep.  851.  32  L.  R.  A.  769n;  Hiberiva  Bldg.  Assn. 

"West.  U.  Tel.  Co.  v.  Snodgrass,  94  v    McGrath,     154     Pa.     St.     296,     26 

Tex.   284,   60    S.   W.   308,   86   Am.    St.  All.  377,  35  Am.   St.  Rep.  828. 


§    345]  LIABILITIES RULES  AND  REGULATIONS.  331 

of  business.^^  As  a  general  thing,  such  rule  will  Ix-  as  convenient 
and  beneficial  to  the  public  as  to  the  companies.  While  it  might  in- 
commode some  persons,  at  some  particular  time,  to  enforce  such  a  reg- 
ulation, yet  as  a  general  convenience  to  the  public  it  would  be  bet- 
ter for  the  rule  to  be  imposed,  since  not  to  do  so  would  necessitate  the 
company  increasing  its  working  force,  and  thereby  increase  the  ex- 
i:)enses  for  carrying  on  the  business — which  would  have  to  be  borne 
indirectly  by  the  public.  As  was  ably  said  on  this  subject:  "It  may 
be  to  the  interest  of  some  individual,  upon  a  particular  occasion,  or 
even  at  all  times,  that  every  oflfice  of  a  telegraph  company  should  l3e 
kept  open  at  all  hours,  and  that  the  working  force  should  be  sufficient 
to  receive  and  deliver  a  dispatch  without  a  moment's  delay.  So,  also, 
it  may  be  to  the  interest  of  a  very  few  that  an  office  should  be  kept  at 
some  point  on  the  line  where  an  office  could  not  be  maintained  in  any 
way  without  a  loss  to  the  company.  If  in  the  first  instance  the  com- 
pany should  be  required  to  keep  the  necessary,  servants  to  keep  its 
business  going  at  all  hours,  it  would  result  in  the  necessity  of  closing 
many  offices  or  in  the  imposition  of  additional  charges  upon  its  cus- 
tomers in  general,  in  order  to  recoup  the  loss  incident  to  their  being 
maintained.  So,  on  the  other  hand,  if  they  should  be  required  to 
keep  offices  wherever  it  might  result  to  the  convenience  of  a  few  per- 
sons, additional  burdens  upon  the  general  public  would  in  like  man- 
ner result."^'*  It  being  conceded  that  these  companies  may  enforce 
these  regulations,  they  will  not  be  liable  for  any  injury  caused  by  a 
failure  to  deliver  a  message  received  by  their  operators  at  a  time 
when  the  office  at  the  other  end  of  the  line  is  closed ;  but  if  this  latter 

«  United  States.— Given  v.  West.  U.  Rhode  Island. — Sweet  v.  Postal  Tel., 

Tel.  Co.,  24  Fed;  119.  etc.,  Co.,  22  R.  I.  344,  47  Atl.  881. 

Georgia.— West.     U.     Tel.     Co.      v.  Tea?as.— West.   U.  Tel.  Co.    v.    Neel, 

Georgia  Cotton  Co.,  94  Ga.  444,  21  S.  86  Tex.  3G8,  25  S.  W.  15,  40  Am.  St. 

E.  835;  Boteman  v.  West.  U.  Tel.  Co.,  Rep.   847;    West.   U.  Tel.   Co.  v.   Win- 

97  Ga.  338,  22  S.  E.  920.  gate,  6  Tex.   Civ.  App.   394;   West.  U. 

/ndiana.— West.  U.  Tel.  Co.  v.  Hard-  Tel.  Co.  v.  Gibson,  53  S.  W.  712;  Wo- 

ing,  103  Ind.  505,  3  N.  E.  172.  mack    v.    West.    U.    Td.    Co.,    58    Tex. 

Kentucky.— West.  U.  Tel.  Co.  v.  Van  17G,  44  Am.  Rep.  614. 
Cleave,  107  Ky.  464,  54  S.  W.  827,  92  West   Virginia.— 'Di\\i>  v.    West.    U. 

Am.  St.  Rep.  366.  Tel.  Co.,  46  W.  Va.  48. 

Maryland.— Berney   v.     New     York,  '<  West.  U.  Tel.  Co.  v.  Neel,  86  Tex. 

etc.,  Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  3GS,  40  Am.  St.  Rep.  847. 
607. 


332  TELEGRAPH  AND  TELEPHONE  COMPANIES.        \_^    345 

office  should  receive  the  message  after  the  closing  hours,  and  when  the 
messengers  have  retired  from  services,  the  company  could  not  set  this 
regiilation  up  as  a  defense  to  an  action  brought  against  it  for  a  fail- 
ure to  deliver,  if  the  message  showed  on  its  face  the  necessity  of  an 
immediate  delivery.  Thus,  Avhere  a  message  is  received  after  office 
hours,  requesting  the  sendee  to  meet  a  corpse  at  the  place  to  which  it 
is  to  be  shipped  and  at  the  place  to  which  the  message  is  addressed  at 
a  time  prior  to  the  opening  of  the  latter  office,  it  is  the  duty  of  the 
company  to  deliver  the  message.^  ^ 

§  346.     Same  continued — statutory  penalty  for  delay — hours  not 
the  same. 

In  some  states  there  are  statutes  which  impose  a  penalty  on  these 
companies  for  a  failure  to  promptly  transmit  and  deliver  a  message, 
but  it  is  understood  that  this  penalty  cannot  be  enforced  unless  the 
message  is  delivered  to  the  company  during  office  hours;  and  this 
means  the  office  hours  at  each  end  of  the  line,  provided  they  are  reas- 
onable. It  may  be,  therefore,  inferred  from  this  statement  that  the 
office  hours  of  all  the  company's  offices  are  not  the  same,  and  it  is 
this  fact  which  we  intend  to  impart.  If  it  were  required  that  the 
office  hours  should  be  the  same,  this  of  itself  would  destroy  the  fun- 
damental reason  for  the  enforcement  of  such  a  rule;  since  the  busi- 
ness of  some  of  the  offices  is  much  greater  than  that  of  others,  and  it 
would,  therefore,  be  necessary,  under  such  a  condition  of  affairs,  for 
these  particular  offices  to  be  kept  open  longer  than  others.  Most  of- 
ten, in  cities,  it  is  necessary  that  they  be  required  to  be  kept  open  all 
the  time.  So,  to  require  all  of  the  offices  to  have  the  same  hours 
would,  as  the  reader  will  clearly  see,  destroy  the  reasonableness  of 
the  rule.^^ 

§  347.     Reasonableness  of  the  rule. 

The  reasonableness  of  this  regulation  with  respect  to  any  particular 
office,  depends  largely  upon  the  locality  of  the  office  and  the  amount 

«West.  U.  Tel.  Co.  v.  Broesehe,  72  ^«W(st.    U.   Tel.    Co.   v.   Harding,    10 

Tex.   654,    10   S.   W.   734,    13   Am.    St.      Am.  &  Eng.  Corp.  Cas.  617. 
Rep.  843. 


<^    348]  LIAI'.ILITIKS KULES   AND   1U:(;ULAT10NS.  333 

of  business  douf  ;ii  tluiL  phicc'''  Ten  hours  a  day  has  been  hehi  to 
be  a  reasonable  time  (luiini:  which  to  keep  the  office  open  in  a  town  of 
onlv  a  few  thousand  people  ;'*'^  and  when  tlie  l)usiness  of  a  town  is  not 
sutticientK'  lariic  1o  justify  the  eniploynient  of  a  special  messenger, 
a  regulation  that  telciiranis  received  after  seven  o'clock  in  the  even- 
ing  will  not  be  (hdivered  niilil  llic  next  nioruiiiu,  is  reasonable."*''  The 
burden  is  on  the  company  to  show  that  the  office  hours  are  reasona- 
ble f^  and  while  it  has  been  held  that  the  reasonableness  of  the  time 
was  a  question  for  the  court,  yet,  the  sounder  holding  is  that  it  is 
a  mixed  question  of  law  and  fact.'^  The  time,  where  there  has  been 
no  definite  hours  fixed,  may  l)e  made  with  reference  to  the  quantity 
of  business  of  that  particular  office  f^  and  it  is  a  question  for  the  jury 
as  to  what  the  office  hours  were.  So  evidence  is  admissible  to  show 
\vh;it  hours  luid  usually  been  observed  at  the  office  in  question.^^ 

§  348.     Same  continued — waiver  of  regulations. 

While  a  telegraidi  company  may  fLx  its  office  hours,  and  is  not  lia- 
ble for  a  failure  to  deliver  a  message  which  has  been  received  after 
this  time,  yet  if  it  continues  to  hold  open  for  business  after  the  usual 
time  for  closing,  it  cannot  set' this  up  as  a  defense  to  an  action  of  neg- 
ligence claimed  to  have  been  connnitted  in  the  transmission  and  de- 
livery of  a  message.  A  general  principle  of  the  law  of  agency  is, 
that  the  principal  is  liable  for  all  acts  of  the  agent  done  within  the 
apparent  scope  of  his  duties,  provided,  the  party  injured  by  such 
act  has  no  knowledge  of  the  agent's  duties.  It  is  within  the  appar- 
ent scope  of  the  operator's  duties  to  extend  the  hours  fixed  for  his 

^'Tel.  Co.  V.  Cridor.   107  Ky.  600,  54  \V.   17.  28   Ky.  L.  lUj).   17.')S;   West.   U. 

S.   W.  963;   West.   T.  Tel.   Cn.   v.   Bry-  Tel.   Co.   v.    Sternbeijien.    107   Ky.   469, 

son,   25   Tex.   Civ.   App.    74,   61    S.   W.  54    S.    W.    829;    West.    U.    Tel.    Co.    v. 

548:    West.   II.   Tel.   Co.   v.   Rawls,    62  Crider,   107  Ky.  600,  54  S.  W.  963. 

S.    W.    136;    Brown    v.    West.    U.    Tel.  =^  West.    V.   Tel.    Co.    v.    Luck.    40    S. 

Co.,    6   Utali    2 111,    21    l»ac.    988;    Davis  ^^'.    753. 

V.    West.   U.    Tel.   Co.,    46    W.   Va.    48,  '» See  page  245. 

32   S.   E.    1026;    Hiemann  v.   West.   U.  *=  West.    U.   Tel.    Co.    v.    Van   Cleave. 

Tel.  Co.,  57   Wis.  562,   17  N.  W.  401.  107    Ky.    464.    .i4    S.    W.    S27.   92    Am. 

*»West.     L'.    Tel.    Co.    v.   Gibson,   53  St.   Rep.    366. 

S.  W.  712.  =^MVest.    I'.    Tel.    Co.    v.     Bryson.     25 

« Davis   v.   West.    C.   Tel.   Co.,   (W,  S.  Tex.  Civ.  App.  74,  61   S.  W.  548. 


<.33-i  TELl'XUiAl'lI    AJN'D   TELEPHONE    COMI'AXIES.  \_^    348 

office ;  and  any  one  doing  business  with  the  agent  with  the  belief  that 
he  is  acting  ^vithin  his  apparent  authority,  may  hold  the  company 
liable  for  any  injury  arising  out  of  such  act.^'*  Thus,  it  is  within 
the  apparent  scope  of  the  agent's  authority  to  undertake  the  delivery 
of  a  message  after  office  hours ;  and  if  he  does  so,  he  is  bound  to  ex- 
ercise due  diligence  to  make  a  prompt  delivery.^ ^  These  regulations 
are  not  waived  where  the  operator  in  accepting  a  message,  expressly 
informs  the  sender  that  he  does  not  know  of  the  office  hours  of  the  of- 
fice at  the  other  end  of  the  line,  but  will  make  an  effort  to  deliver; 
such  an  acceptance  does  not  amount  to  a  special  undertaking  to  trans- 
mit without  reference  to  office  hours  prevailing  at  the  latter  office.^® 
So,  a  mere  agreement  of  the  agent  to  use  his  best  efforts  to  effect  an 
immediate  transmission  wdll  not  render  the  company  liable  where  its 
receiving  office  is  closed  pursuant  to  established  office  hours.^^  The 
failure  of  the  operator  to  observe  the  office  hours,  when  habitual,  may 
be  shown  in  evidence  as  indicating  that  no  rule  on  the  subject  pre- 
vailed or  was  enforced ;  but  proof  merely  of  an  occasional  transmis- 
sion or  delivery  after  the  office  hours  will  not  be  sufficient  to  establish 
a  waiver  of  the  regulations.^^ 

§  349.     Employees  need  not  be  informed  of  other  office  hours. 

It  is  not  the  duty  of  the  operators  at  any  receiving  office  to  know 
the  hours  of  any  other  office  of  the  company.^^     The  immense  number 

"Dowdy   V.    West.    U.   Tel.    Co.,    124  =' West.    U.    Tel.    Co.    v.    Crider,    107 

N.  C.  522,     32     S.  E.  802;     West.     U.  Ky.  600,  54  S.  W.  963;   West.  U.  Tel. 

Tel.  Co.  V.  Bryson,  25  Tex.  Civ.  App.  Co.   v.   McConnico,   27   Tex.   Civ.   App. 

74,   65   S.  W.   548;    West.  U.  Tel.  Co.  610,  66  S.  W.  592. 
V.  Pearce,  70  S.  W.  361.  ^' Given   v.   West.    U.    Tel.    Co.,    24 

=3McPeek  v.  West.  U.  Tel.  Co.,  107  Fed.  119;  West.  U.  Tel.  Co.  v.  Hard- 
Iowa  356,  70  Am.  St.  Rep.  205,  43  L.  ii-.g,  103  Ind.  505,  3  N.  E.  172;  Sweet 
R.  A.  214,  78  N.  W.  63.  v.  Postal,  etc.,  Tel.  Co.,  22  R.  I.  344, 

=*'=  Dowdy  V.   West.   U.   Tel.    Co.,    124  47  Atl.  881;  West.  U.  Tel.  Co.  v.  Neel, 

X.  C.  522,     32     S.  E.  802;     West.     U.  86  Tex.  368,  25  S.  W.  15,  40  Am.  St. 

Tel.  Co.  V.  Biyson,  25  Tex.   Civ.  App.  Rep.   847;    West.   U.   Tel.    Co.    v.    Mc- 

74,  65   S.  W.   548;    West.  U.  Tel.   Co.  Connico,  27  Tex.  Civ.  App.  610,  66  S. 

v.   Pearce,  70   S.   W.  361.  W.    592;    Stevenson    v.    Montreal  Tel. 

"McPeek  v.  West.  U.  Tel.   Co.,   107  Co.,  16  N.  C.  Q.  B.  559;  Thompson  v. 

Iowa  356,  70  Am.   St.  Rep.  205,  43  L.  West.   XT.   To).   Co.,   32  Mo.   App.    197. 
R.  A.   214,  78   N.   W.   63. 


<§,    350]  LIABILITIES KULES   AAD    KEGULATIOiNS.  335 

of  these  offices  all  over  the  United  States,  the  frequent  changes  among 
them,  and  the  time  of  closing  seems  to  make  this  onerous  and  incon- 
venient to  a  degree  which  forbids  it  to  be  treated  as  a  duty  to  its  cus- 
tomers for  neglect,  and  for  which  it  should  be  held  liable  in  damages. 
Furthermore,  there  is  no  more  obligation  to  do  this  in  regard  to  offices 
in  the  same  state  than  in  those  four  thousand  miles  away ;  since  the 
communication  is  between  them  all  and  of  equal  importance.^''  And 
where  the  operator  has  habitually  kept  the  office  open,  after  the  estab- 
lished hours,  this  will  not  deprive  the  company  of  the  benefit  of  the 
regulation.^  ^  It  has  been  held,  however,  that  if  the  message  has  been 
accepted  by  the  company  at  a  time  when  the  office  at  the  other  end 
w^as  closed,  it  would  nevertheless  be  liable  for  a  failure  to  transmit 
and  deliver  same  f^  but  this  was  a  case  where  the  message  showed  on 
its  face  the  importance  of  an  immediate  delivery. 

§  350.     Office  hours  as  affects  company's  duty — night  message. 

Where  a  telegraph  company  has  fixed  certain  hours  within  which 
all  business  transactions  should  be  consummated,  it  is  under  no  obli- 
gation to  receive,  for  transmission,  any  message  outside  of  such  office 
hours;  but  if  it  should  receive  a  message,  at  a  time  when  the  office 
at  the  other  end  of  the  line  was  closed,  it  may  transmit  the  message 
within  a  reasonable  time  after  the  opening  of  the  latter  office.^^  Such 
state  of  facts  very  often  happens  w^here  the  message  is  received  by  the 
company  after  the  terminal  office  has  closed  for  the  night,  and  it  is 
invariably  held  that  the  message  may  be  transmitted  within  a  rea- 
sonable time  after  the  office  has  opened  on  the  following  morning. 
If,  however,  the  office  at  the  other  end  of  the  line  is  only  open  for  the 
receiving  of  messages,  and  the  general  messenger  boys  have  retired 
from  service,  the  company  will,  nevertheless,  be  under  obligations  to 
deliver  the  message,  if  the  sendee  prepays  extra  charges  for  the  deliv- 
ery of  a  night  message.    It  is  very  often  the  case  that  the  sender  pays 

°» Given    v.    West.    U.     Tel.     Co.,     24  U.  Tel.  Co.  v.  Bnmer.  1!1  S.  W.   (Tex.) 

Fed.    119.  M9- 

'^  West.  U.  Tel.  Co.  v.'  Georgia  Cot-  "'  West.  U.  Tel.  Co.  v.  Neel,  8G  Tex. 

ton  Co.,  94  Ga.  444,  21  S.  E.  835.  r)G8,    25    S.    W.    15,    40   Am.    St.    Rep. 

•^'West.  U.  Tel.  Co.  v.  Broesche,  72  847;    West.   U.  Tel.  Co.  v.  Gibson,   5:i 

I'ex.  654,   13  Am.   St.  Txop.  S43 ;   West.  S.   W.    (Tex.)    712. 


o36  TELEGRAril   AXD    TELEPHONE    COMPANIES.  [<§>    350 

an  extra  oliarge  to  have  the  message  delivered  after  the  offices  have 
closed,  and  when  the  company  accepts  the  message  with  snch  ah  nn- 
derstanding,  it  is  dnty  bound  to  make  diligent  and  prompt  delivery.'^* 
But  a  mere  attempt  to  make  immediate  deliverv,  where  there  is  no 
duty  to  deliver  the  next  morning,  will  not  render  the  company  liable 
for  a  failnre  to  deliver  ;''■'•  and  a  verbal  agTeement  between  the  agent 
and  the  sender  that  the  message  need  not  be  delivercMJ  at  night,  is 
binding. '■''  Where  a  message,  summoning  a  physician,  has  been  re- 
ceived after  the  close  of  office  hours  the  physical  sufferings  endured  by 
the  plaintiff  during  that  time  cannot  be  considered  in  determining  the 
amount  of  damages  to  be  awarded,  even  though  the  company  negli- 
gently delays  delivering  the  message  after  the  office  opened  on  the  fol- 
lowing morning.®^ 

§  351.     Knowledge  of  sender  as  to  office  hours. 

These  companies,  having  the  right  to  adopt  and  enforce  regulations 
respecting  office  hours,  may  bind  all  who  apply  to  them  for  service, 
even  though  they  may  not  have  knowledge  of  the  office  hours  of  the 
company.  It  is  the  duty  of  the  sender,  when  he  delivers  a  message 
to  the  company  at  an  unusual  hour,  to  inquire  as  to  whether  or  not 
the  message  can  then  be  sent;  and  on  failure  to  do  so,  if  the  message 
is  delayed,  on  the  account  of  its  having  been  received  after  the  closing 
hours,  the  company  will  not  be  liable  for  any  injury  arising  thereby.^^ 
It  has  been  held,  however,  that  the  sender  is  not  bound  if  he  had  no 
knowledge  of  this  fact,"''  yet  we  think  that  this  is  not  sound  doctrine. 

§  352.     Telephone  companies — enforcement  of  tolls. 

Telephone  companies  have  the  same  right  to  adopt,  prescribe  and 
enforce  all  reasonable  regulations  for  the  convenience  of  their  busi- 
ness, as  telegraph  companies;  and  that  which  has  already  been  said  of 

•^  West.  U.  Tol.  Co.  V.  IVrry,  .30  Tex.  ™V\est.    L.   Tel.    Co.    v.    Wingate,    G 

Civ.  App.  243,  70  S.  W.  4.39;  West.  U.  Tex.  Civ.  App.  .394,  2.1  S.  W.  439. 

Tel.    Co.    v.   Cavin,    30   Tex.    Civ.    App.  "'West.  U.  Tel.  Co.  v.  Merrill,  22  S. 

152;    West.   U.   Tel.   Co.  v.   Hill,   26   S.  W.   826:    West.    U.   Tel.   Co.  v.   Rosen- 

W.   2.52.  trelev,  80  Tex.  406,  16  S.  W.  25. 

«West.   V.   Tel.   Co.   v.   IJnwls,   62   S.  "» See  note   59. 

W.  136.  ""See   note  62. 


T^    352]  LIABILITIES RULES   AND   REGULATIONS.  337 

certain  parlicular  regulations  of  the  latter,    is    applicable    to    these 
companies.  Thus,  they  may  have  reasonable  office  hours  and  are  not 
under  obligation  to  render  service  to  any  one  outside  of  such  hours. 
There  is  this  distinction,  however,  between  these  companies  in  this 
respect :  the  party  calling  docs  not  have  to  pay  the  toll  until  the  coni- 
aiunicant  has  been  summoned  to  the  telephone ;  and,  if  he  cannot  be 
found,  the  former  knows  immediately  that  he  cannot  communicate 
with  him.     It  is  no  duty  of  the  company  to  make  an  effort  to  get  the 
party  called  to  the  telephone  after  the  office  at  his  end  of  the  line 
has  closed.     They  may  enforce  the  payment  of  the  rental;  and  on 
the  failure  of  the  subscriber  to  make  such  payment,  his  telephone 
may  be  removed  from  his  premises,  after  giving  timely  notice  to  that 
effect.'^^    The  subscriber,it  seems,  cannot  object  to  this  act  of  the  com- 
pany on  the  ground  that  it  has  not  given  efficient  service,'^  ^  or  that 
the  company  is  indebted  to  him."^-  They  may  require  the  party  call- 
ing, to  go  to  the  exchange  office,  and  prepay  the  toll  or  that  he  deposit 
a  sufficient  amount  at  the  toll  station  before  any  services  shall  be  ren- 
dered.    We  think  that  they  could  not  enforce  a  regulation  whereby 
the  subscriber  is  required  to  contract  for  a  telephone  for  one  year,  be- 
fore one  is  placed  on  his  premises ;  but  that  they  are  under  obligations 
to  give  him  the  same  service,  as  any  other  subscriber,  even  though 
he  may  not  desire  the  service  so  long.     It  is  a  reasonable  rule  of  these 
companies  that  so  much  extra  toll  shall  be  paid  after  the  conversation 
has  extended  beyond  the  regular  time  allowed  for  conversations ;  and 
they  may  limit  the  length  of  time  of  conversation  over  long  distance 
telephones.    As  these  companies  are  intended  for  general  use,  by  per- 
sons of  all  classes,  and  for  both  sexes,  those  who  use  them  may  be  re- 
quired to  conduct  their  conversation  in  a  becoming  manner,  free  from 
obscenity  or  profanity ;  and  for  a  violation  of  this  requirement,  may 
be  denied  the  further  use  of  the  telephone."-^     Xo  regulation  will  be 
tolerated  which  prevents  the  public  from  having  a  fair  and  reasonable 
use  of  its  telephones  and  exchanges,  or  denies  to  any  one  the  rights 
secured  to  him  by  statute,  or  requires  him  to  conduct  his  business 

"•Malochce  v.  Great    Southern,    etc.,  "^  Rushville   Co-operative   Tel.   Co.   v. 

Tel.  Co.,  22  So.   (La.)    922.  Irvin,  27  Ind.  App.  62. 

■'  Cumberland  Tel.   Co.  v.  Baker,   37  "  Pugh  v.  City  &  S.  Tel.  Co.,  9  CtMi. 

So.    (Miss.)    1012.      .  L.  B.   104,  27   Alb.  L.  J.   162. 
T.  &  T.— 22 


33S  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [^    352 

with  particular  persons  or  agencies.  Thus,  a  regulation  is  unreason- 
able and  invalid  if  it  prohibits  subscribers  from  calling  messengers 
otherwise  than  through  the  central  office.^'* 

§  353.     May  waive  regulations. 

Rules  and  regulations  of  these  companies   which  are    merely    for 
their  convenience  may  be  waived,"^^  either  expressly  or  by  implica- 
tion, and  whether  or  not  they  have  been  waived  is  a  mixed  question 
of  law  and  fact.    It  may  be  inferred  that  they  have  been  waived,  if 
the  company  has  failed  repeatedly  to  enforce  such  a  rule."^"^  Thus,  as 
has  been  heretofore  said,  they  may  enforce  a  rule  prescribing  reason- 
able office  hours,  yet  if  they  accept  messages  for  transmission  and 
delivery  after  the  closing  of  the  office,  it  will  be  presumed  that  they 
have  waived  the  regulation.    They  may  require  all  messages  tendered 
them  to  be  in  writing,  but  if  they  receive  such  orally  they  cannot  set 
up  this  rule  as  a  defense  to  an  action  brought  for  negligently  trans- 
mitting or  delivering  a  message.     As,  where  the  local  office  makes  a 
practice  of  receiving  for  transmission  messages,  telephoned  to  it,  and 
it  does  not  appear  that  the  company  had  forbidden  the  practice,  it 
seems  that  the  operator,  in  writing  out  the  message,  must  be  deemed 
the  company's  agent  to  render  it  liable  for  an  error  made  by  him  in 
transcribing  f'^  or,  if  the  operator  has  been  in  the  habit  of  receiving 
messages,  verbally  through  the  messenger;  or,  messages  have  been 
conveyed  to  him  by  means  of  a  speaking  tube,  it  will   be   presumed 
that  the  company  has  waived  the  regulation. "^^     So,  also,  if  the  com- 
pany has  failed  to  require  prepayment  of  the  charges ;  or,  has  defer- 
red the  collection  of  same  until  some  subsequent  time ;  or,  if  the  extra 
charge,  which  may  be  exacted  of  the  sender  for  a  delivery  beyond  the 
free  delivery  limits,  has  not  been  deposited,  it  will  have  waived  its 
rights  to  enforce  the  regulation;  and  cannot,  therefore,  set  up  the 

"People   V.   Hudson   River   Tel.   Co.,  "West.   U.    Tel.    Co.    v.    Stevenson, 

19  Abb.  N.  C.  466,  10  N.  Y.  Supt.  Ct.  cited  in  note  75. 

282.  "West.  U.  Tel.  Co.  v.  Todd,  22  Ind. 

'=West.   U.   Tel.    Co.    v.     Stevenson,  App.  701. 

128  Pa.   St.  442,   18  Atl.  441,  5  L.  R.  '»West.     U.     Tel.     Co.    v.    Stevenson, 

A.   515,   15  Am.  St.  Rep.  687;    People  cited  in  note  75. 
V.  West.   U.   Tel.   Co.,    166   111.    15,   46 
Atl.  731,  36  L.  R.  A.  637. 


§    353]  LIABILITIES KULES   AND   llEGULATIONS.  339 

fact  of  a  non-compliance  with  the  rule,  as  a  defense  to  an  action 
brought  against  it.'°  These  companies  may  have  the  right  to  refuse 
certain  messages  tendered  them  for  transmission,  but  if  the  operator 
should  accept  such  a  message,  knowing  that  the  company  would  re- 
fuse such,  and  negligently  transmits  or  delivers  it,  whereby  damages 
have  been  incurred,  the  company  nevertheless  will  be  liable.**' 

'•West.   U.  Tel.  Co.    v.    Yopst,    118  22  Ind.  701;  Garland  v.  West.  U.  Tel. 

Iiid.    248,   20    N.    E.    222,   3   L.   R.    A.  Co.,  118  Mich.  369,  74  N.  W.  762,  74 

224n.  Am.    St.   Rep.   394,   43   L.   R.  A.   280; 

""Beasley    v.    West.  U.  Tel.   Co.,  39  Texas  Tel.  Co.  v.  Seiders,  9  Tex.  Civ. 

Fed.    181;    West.  U.  Tel.   Co.  v.  Todd,  App.  431,  29  S.  W.  258. 


CHAPTER  XVI. 

DUTIES  UNDER  THE  COMMON  LAW. 

354.  In  general. 

355.  Act  of  God — not  liable  for — contract: 

356.  Same  continued — express  contract. 

357.  Same  continued — burden  of  proof. 

358.  Public  enemy. 

359.  Same  continued. 

360.  Same  continued — mobs,  strikes,  etc. 

361.  Same  continued — strikes,  not  liable — must  supply  places. 

362.  Same  continued — in  cases  of  express  contracts. 

363.  Connecting  lines. 

364.  Negligence  of  the  sender  or  sendee. 

365.  Proximate  cause — burden  of  proof. 


§  354.     In  general. 

Telegraph  companies  are  not,  strictly  speaking,  common  carriers; 
and  are  not,  therefore,  held  to  such  strict  accountability  as  ar-e  the 
latter.  The  public,  however,  is  interested  in  their  business,  in  that 
they  are  exercising  a  public  function  and  must,  to  that  extent,  as  has 
been  seen,  manage  and  control  their  business  affairs.  The  sources 
from  which  the  public  has  obtained  the  power  to  exercise  this  con- 
trol are  now  derived  from  statutes  and  the  common  law,  and  to  these 
the  reader  must  resort  in  order  to  ascertain  such  powers.  Common 
carriers,  under  the  common  law,  were  held  to  the  most  strict  account- 
ability for  their  seiwices  to  the  public,  and  the  question  of  negligence 
did  not  enter  into  consideration  of  the  courts  in  determining  a  loss 
incurred.  In  other  Avords,  they  were  held  strictly  liable  as  insurers, 
and  were  responsible  for  all  losses  incurred,  except  such  as  may  hare 
been  caused  by  the  act  of  God  or  the  public  enemy.  On  account  of 
these  companies  enlarging  their  lines  of  business  and  thereby  holding 
themselves  out  to  the  public  as  willing  to  transport  many  and  varied 
things  which  were  not  contemplated  as  subjects  of  transportation  at 
the  time  the  business  was  first  begun — and  many  of  which  were  of  a 
peculiar  perishable  nature  and  otherAvise  more  subject  to  loss  or  in- 
jury— the  common-law  rule  has  been  somewhat  relaxed  and  they  are 

(340) 


(^    355]  DUTIES  UNDKll  COMMON    LAW.  uil 

not  now  held  liable  i"or  every  loss  as  they  formerly  were.  Telegraph 
companies  are  not  insurers,  but  in  every  other  respect  they  are  held 
to  the  same  liability  for  losses  and  injuries,  as  are  common  carriers. 
They  may,  however,  as  will  be  seen  hereafter,  limit  their  common- 
law  liabilities ;  and  in  most  states,  there  are  statutes  which,  more  or 
less,  give  them  the  power  to  exercise  this  right. 

S  355.    Act  of  God — not  liable  for — contract. 

As  we  have  seen,  the  common  law  holds  that  telegraph  companies 
are  exonerated  in  those  cases  where  the  act  of  God  has  been  the  prox- 
imate cause  of  the  loss  or  injury  to  the  business  intrusted  to  their 
care — and  in  this  respect  there  is  no  diversity  of  opinion — but  what 
are  such  causes  as  may  be  considered  the  act  of  God,  and  such  as  will 
be  sufficient  to  exonerate  them  for  losses  resulting  therefrom,  is  not 
clearly  defined  by  the  courts ;  and  this  fact  has  brought  about,  to  a 
certain  extent,  a  diversity  of  opinion.  It  may  be  safely  said,  however, 
that  if  there  is  intervening  any  human  agency  which  contributes  in 
any  manner,  to  the  production  of  the  loss  or  injury,  and  without 
Avhich  the  company  would  be  exonerated,  on  the  ground  that  the  loss 
was  caused  by  the  act  of  God,  it  will  be  liable.^  Thus,  if  the  condi- 
tion of  the  company's  lines  or  instruments  are  such  that  they  cannot 
be  used — and  such  conditions  were  originally  caused  by  the  act  of 
God — the  eoiii])iniy  will,  nevertheless,  be  liable  for  any  loss  thereby 
incurred,  if  it  is  negligent,  in  anywise,  in  making  a  reasonable  effort 
to  repair,  as  speedily  as  possible,  the  defects.  It  is  fairly  well  settled, 
that  these  companies  will  not  be  liable  for  losses  caused  by  extraordi- 
nary tempest,  storms  or  tlic  like,  unless  their  own  negligence  contrib- 
uted to  llio  ])nHluc(ion  <<i'  the  los-^.'-    Thn~,  it  Iuh  been  hold  that  they 

'Friend  v.   Woods,  G  Giatt.    180,   52  Navigation  Co..   10  X.  Y.  431:  Hays  v. 

Am.    Dec.    119;    New    Bninswitk.    etc..  Kennedy,   41    Pa.    St.   378. 
Co.  V.  Tiers,  24  N.  J.  L.  097,  64  Am.  -  Nashville,  etc.,  R.  Co.    v.    King.    6 

Dec.  396;  Head  v.  Spaulding.  30  N.  Y.  lleisk.    (Tenn.).   269;     Nashville,    etc.. 

630,  86  Am.    Dec.    426;    Hill  v.  Slur-  It.  Co.  v.  David.  6  Heisk.    (Tenn.)   261. 

geon,  28  [Nio.  323;   Strauss  v.  Wabash.  19  Am.  Kep.  594;   Ballentine  v.  North 

etc.,  R.    Co.,    17    Fed.     209;     Graff    v.  Missouri,  etc.,  R.   Co.,  40  Mo.  491.  93 

Bloomer.     9     Pa.     St.     114;    Parker   v.  Aiu.   Dec.  315;   Walhice  v.  Clayton,  42 

Flagg.  26   Mo.    181;     :Millor    v.    Steam  (!a.   443;   Pcarce  v.  Tiie  Thomas  New- 


342  TELEGEAPH   AND   TELEPHONE   COMPANIES.  [§    355 

are  not  liable  for  losses  caused  by  severe  windstorms;^  or  where  the 
lines  have  been  broken  or  otherwise  injured  by  sudden  and  unex- 
pected freezes.  Where  there  have  been  losses  caused  by  other  atmos- 
pheric conditions,  they  will  not  be  held  liable  therefor. 

§  356.     Same  continued — express  contract. 

Telegraph  companies  may,  however,  bind  themselves  in  such  way 
as  to  be  under  obligation  to  transmit  and  deliver  a  message,  irrespec- 
tive of  any  loss  from  which  they  might  have  otherwise  been  exone- 
rated by  the  fact  that  the  proximate  cause  of  the  loss  was  the  result 
of  the  act  of  God.^  In  other  words,  they  may  make  an  express  con- 
tract to  transmit  the  message,  or  risk  all  hazards  in  the  attempt,  but 
in  order  to  hold  them,  under  such  an  agreement,  the  terms  of  the 
contract  must  be  very  clear  and  expressive;  since,  if  there  is  any 
doubt  as  to  the  purport  of  the  agreement,  they  will  not  be  held  liable. 
They  may,  furthermore,  enlarge  their  common-law  liabilities ;  but,  at 
the  same  time,  this  additional  undertaking  may  not  be  such  as  would 
hold  them  liable  for  losses  caused  by  the  act  of  God.  In  other  words, 
they  contract  to  insure  a  safe  and  correct  transmission  of  messages 
intrusted  to  them ;  however,  it  would  not  be  understood  by  such  con- 
tract that  they  could  be  held  liable  for  losses  caused  proximately 
from  what  is  termed  the  act  of  God.  Where  there  is  an  agreement  en- 
tered into,  whereby  they  enlarge  their  common-law  liabilities  in 
either  way,  they  may  exact  of  the  sender  an  additional  compensation 
for  the  extra  risk  assumed.  It  seems  that  it  should  be  mostly  discre- 
tionary with  the  company  as  to  whether  it  should  assume  the  risk  in 
either  instance,  since,  if  the  undertaking  should  appear  unsurmount- 
able,  caused  by  the  varied  climatic  changes — and  they  are  better  able 


ton,  41   Fed.    lOG;   Packard  v.  Taylor,  Colo.  333,  25  Pac.  702;   Insurance  Co. 

35  Ark.    402;    Bowman    v.    Teall,    23  v.   Transportation  Co.,    12   Wall.   194; 

Wend.   306,  35  Am.   Dec.  562;   Harris  Milwaukee,  etc.,  R.  Co.  v.  Kellogg,  94 

V.  Roud,  4  N.  H.    259,    17    Am.    Dec.  U.  S.  469;  Insurance  Co.  v.  Boom,  flo 

421;   Slater  v.  South  Carolina  R.  Co.,  U.  S.   117. 

29  S.  Car.  96.  *  Milton  v.  Denver,    etc.,    R.    Co.,    1 

^Blythe  v.  Denver,  etc.,    R.    Co.,    15  Colo.  App.  307,  29  Pac,  22. 


^    357]  DUTIES  UNDER  COMMON  LAW.  343 

to  determine  these  conditions  of  affairs  than  any  other — they  should 
not  be  forced  to  accept  a  message  for  transmission  under  such  eon- 
tract,  but  it  should  be  left  entirely  to  their  own  sound  discretion. 
For  the  reason  that  they  are  public  enterprises,  discharging  puljlic 
duties,  and  occasionally  enlarging  those  duties,  is  no  reason  why  un- 
due advantage  should  be  taken  of  them,  and  that  additional,  exces- 
sive and  unnecessary  burdens  should  be  imposed  upon  them. 

§  357.     Same  continued — burden  of  proof. 

Where  a  telegraph  company  relies  upon  the  defense  of  the  act  of 
God,  it  must  prove  affirmatively  that  the  loss  or  injury  complained 
of  was  proximately  caused  by  the  act  of  God."  There  seems,  how- 
ever, to  be  a  difference  of  opinion  among  the  courts  as  to  whether  or 
not  the  company  must  supplement  the  evidence  that  the  loss  was  the 
result  of  the  act  of  God,  by  evidence  to  the  effect  that  the  loss  was 
not  the  result  of  any  negligence  on  its  own  part.  Some  of  the  courts 
hold  that  all  that  is  necessary  for  the  company  to  prove  is,  that  the 
loss  or  injury  arose  from  what  is  termed  the  act  of  God,^  while  other 
courts  hold  that  they  must  not  only  prove  that  the  loss  was  caused  by 
the  act  of  God,  but,  also,  that  no  act  on  their  part  contributed  to  the 
loss."  In  other  words,  they  must  affirmatively  show  that  there  was 
110  negligence  or  fault  on  their  part.  If  the  negligence  of  the  cora- 
l^any  intervened  or  contributed  to  the  production  of  the  loss,  the  rule 
that  the  company  may  be  exonerated  by  the  act  of  God  does  not  ap- 
ply,   since    the    negligence    of    the    company    will    be    considered 

=  Wallingford   v.    Columbia,    etc.,    R.  *  Kaihoad   Co.   v.    Reeves,     10    Wall. 

Co.,  26  S.  Car.  258;  Denver  v.  Chicago,  176;    Maguire   v.   Densniore,   56  N.   Y. 

etc.,  R.  Co.,  52  Iowa  161,  2  N.  W.  1093,  168;    Wolf   v.   American,   etc.,    Co.,    43 

35  Am.  Rep.  263;   Colton  v.  Cleveland,  Mo.  421,     97     Am.     Dec.     406;   Little 

ttc,  R.  Co.,  67  Pa.  St.  211,  5  Am.  Rep.  Rock,  etc.,  R.  Co.  v.  Corcoran,  40  Ark. 

424;  Agrew  v.  Steamer  Costa  Rica,  27  375. 

Cal.  425,  87    Am.    Dec.   87 ;    Southern,  "  Brown   v.   Adams,   etc.,   Co.,    15   W. 

etc.,  Co.  V.  Newby,  36  Ga.  635,  91  Am.  Va.  812;    Ryan    v.    Missouri,    etc.,  R. 

Dec.  783;     Leonard     v.     Hendrickson,  Co.,  65  Tex.    13,    57    Am.    Rep.    589; 

18  Pa.  St.  40,  55  Am.  Dec.  587;  Craig  Steele  v.   Lowensend,   37   Ala.  247,   79 

V.    Childress,    Peck.     (Tenn.)     270,    14  Am.  Dec.  49;  Gray  v.  Mobile,  etc.,  Co., 

Am.  Dec.  751;   Lamb  v.  Camden,  etc.,  55  Ala.  387,  28  Am.   Rep.  729. 
II.  Co.,  46  N.  Y.  271,  7  Am.  Rep.  327. 


344  TELEGRA.PH   AND   TELEPHONE    COMPANIES.  [§    357' 

the  iDi-oximate  cause  of  the  loss  or  injury.^  If  this  rule  should 
be  resorted  to  by  the  compaii}'  for  its  own  protection,  it  must  be 
shown  that  the  act  of  God  was  the  proxiniat(\  and  not  the  remote, 
cause  of  the  loss ;  ^  and  the  burden  is  cast  upon  the  company  to  make 
such  showing,  for,  surely,  when  it  makes  this  defense — and  that 
about  which  it  knows  more  than  any  other — it  should  be  able  to  sus- 
tain it  by  proof.  It  seems  to  us  that  this  proof  should  be  very  clearly 
and  affirmatively  show^n,  since  to  hold  otherwise  might  have  the  ten- 
dency to  give  these  companies  an  easy  defense  to  avoid  many  of  their 
liabilities.  Some  of  the  courts  have  held  that  these  companies  must 
show  that  the  act  of  God  was  the  sole  cause  of  the  loss.^° 

§  358.     Public  enemy. 

As  has  been  heretofore  averted  to,  telegraph  companies  are  not 
liable  for  losses  caused  by  acts  of  the  public  enemy ;  and  in  consider- 
ing this  question,  it  might  be  well  to  say  something  about  what  is 
meant  by  the  term  "public  enemy."  The  term  "public  enemy" 
means  those  people  with  whom  the  country  is  at  war,  and  does  not 
include  thieves,  rioters  or  insurgents.  Thus,  when  the  war  between 
the  United  States  and  Mexico  was  raging,  the  latter  was  a  public 
enemy  to  this  country' ;  how^ever,  there  were  few  adjudications  arising 
out  of  losses  to  persons  during  this  war,  and  there  are  few  to  be 
found  in  our  country  up  until  the  beginning  of,  or  during,  the  Civil 
War,  and  all  of  these  pertained  to  the  destruction  of  goods  in  the 
charge  of  common  carriers.  In  these  cases  it  was  held  that  as  to 
goods  in  the  possession  of  carriers  operating  wdthin  the  territory 
under  the  control  of  the  federal  government,  the  destruction  by  the 
Confederate  forces  was  a  destruction  by  the  public  enemy  for  which 

"McGraw  v.   Baltimore,  etc.,  R.   Co.,  42G;  Steele  v.  McTyre,  31  Ala.  GG7 ;  70 

18   W.   Va.    361,    41     Am.    Rep.     696;  Am.   Dec.   516. 

Williams  v.  Grant,  1  Conn.  487,  7  Am.  '» Reed  v.  Spaiilding,  30  N.Y.  630,  80 

Dec.   235;    Packard  v.  Taylor,   35  Ark.  Am.  Dec.  426;   Michaels  v.  New  York, 

402,   37    Am.   Rep.    37.  etc.,  R.  Co.,  30  N.  Y.  564,  86  Am.  Dec. 

»Hays   V.   Kennedy,   41    Pa.   St.   378,  415;  Crasby  v.  Fitch,  12  Conn.  410,  31 

80  Am.  Dec.  627;  Merritt  v.  Earle,  29  Am.   Dec.   745;    Harmony  v.   Bingham. 

N.  Y.   115,  86  Am.  Dec.  292;   Reed  v.  12  N.  Y.  99,   62  Am.   Dec.    142. 
Spaulding,  30  N.  Y.  630,  86  Am.  Dec. 


<^    359]  DUTIES  UNDER  COMMON   LAW.  345 

the  carrier  woiilil  ikiI  he  responsible.^'  Likewise  it  was  held  that  de- 
struction by  the  federal  troops  of  goods  in  the  possession  of  carriers 
operating  witliin  the  Confederate  lines,  was  also  a  destruction  by  the 
public  enemy.'-  But  if  the  goods  had  been  received  within  the  Con- 
federate lines  and  destroyed  by  their  troops  therein/-^  or  vice  versa, 
if  they  had  been  received  and  destroyed  within  the  federal  lines  by 
their  own  military  troops,'"*  the  destniction  would  not  be  considered 
as  that  done  by  the  public  enemy  and  the  carriers  could  not,  there- 
fore, relieve  themselves  of  liability.  The  business  of  a  carrier,  in 
some  respects,  is  similar  in  character  to  that  of  telegraph  companies; 
and,  as  the  former  has  been  in  use  much  longer  than  the  latter, 
wliereby  there  are  to  be  found  many  more  decisions  on  points  of  law 
now  considered  with  respect  to  telegraph  com]ianies,  we  are  often 
found  resorting  to  such  decisions,  since  tlu y  in  many  instances  are 
applicable  to  the  latter  companies. 

§  359.     Same  continued. 

It  was  said  in  the  previous  paragraph  that  insurgents  were  not 
classed  as  the  public  enemy;  but  if  they  have  become  so  hostile  and 
ravenous,  and  have  gathered  such  strength  of  force  as  to  involve  the 
country  in  civil  war,  they  will  be  considered  a  public  enemy. ^^  It  is 
not  necessary  for  the  government  to  declare  war  against  those  who 
are  in  arms  against  it,  to  make  them  a  public  enemy ;  but  if  the  con- 
dition of  affairs  is  such  as  to  place  the  country  in  an  actual  state  of 
war,  such  insurgents  then  will  Ix'  nothing  less  than  an  enemy  to  the 
public.  One  of  the  great  reasons  why  all  corporations  exercising 
public  functions  are  exonerated  from  losses  caused  by  the  public 
enemy  is,  that  the  ])nblic  has  failed  to  discharge  its  part  of  the  agrce- 

"  Morse  V.   Slue.  2  Keb.  866,  3  Keb.  '-Id. 

72,  112,  135,  2  Lev.  69,  1  Mod.  85,  T.  "Id. 

Raym.  220.  I  Vent.  190,  238;  Bland  v.  "Id. 

Adams    Express    Co..     1     Duv.     (Ky.)  '^  Nashvill.'.  rt...   K.  Co.  v.   Estis.   10 

233,  85   Am.   Deo.   023;    Louis  v.   Liid-  Lea     (Teun.)    747:   .McCraine.  v.  Wood, 

wick,   G    Coldw.    (Tenii.)    368,   98   Am.  24  La.  Ann.  400 ;  HoUaday  v.  Kenwood. 

Dec.  454;  Nashville,  etc.,  R.  Co.  v.  Es-  12  Wall.   3.i4 :     Southern,    etc..    Co.    v. 

tis,   10   Lea     (Tenn.)     749;     Nashville.  Womack.      1      Heisk.       (Tenn.)       256: 

etc.,  R.  Co.  V.  Estis,  7   Heisk.    (T.iin.)  liiited    Slates    v.     Pahiur.    '.)     Wheat. 

622.  >'10. 


346  TEIiEGEAPH  AND   TELEPHONE   COMPANIES.  [§    359 

ment — imder  Avhicli  these  business  enterprises  assumed  public  du- 
ties— in  protecting  them  in  their  inheritable  rights  and  guaranteeing 
them  a  free  exercise  of  their  business,  unmolested  by  any  act  which 
should  be  protected  by  the  government.  As  the  government  has 
failed  to  carry  out  its  part  of  the  agreement,  the  other  contracting 
party,  as  in  all  contracts,  cannot  be  forced  to  continue  operating  un- 
der the  same  agreement;  and  any  loss  or  injury  which  has  been 
brought  about  by  the  party  at  fault,  cannot  afterwards  be  taken  ad- 
vantage of  by  this  party  or  any  of  his  agencies.  It  is  their  duty, 
however,  when  the  business  of  any  of  these  corporations  is  being  in- 
terfered with  by  the  public  enemy,  to  use  due  care  and  diligence  to 
prevent  any  loss  which  might  likely  be  caused  by  the  latter ;  and,  so 
where  they  are  derelict  in  this  respect,  or  where  their  own  negligent 
acts  have  intervened  and  contributed  to  the  production  of  the  loss, 
they  will  not  be  exonerated  for  such  acts,  since  their  negligence  will 
be  deemed  the  proximate  cause  of  the  loss.  They  can  never  be  re- 
lieved from  liability  for  the  acts  of  the  public  enemy  until  such  fact 
is  proven  affirmatively  by  them  to  be  the  proximate  cause  of  the 
loss.^®  IsTot  only  is  the  burden  of  proof  cast  upon  these  companies, 
but  they  must  further  show  by  competent  and  sufficient  evidence  that 
the  loss  was  not  the  result  of  any  negligence  or  want  of  care  on  their 
part.  It  may  seem  strange,  from  what  has  been  said  with  respect  to 
the  government  failing  to  perform  its  part  of  the  contract  in  protect- 
ing these  corporations  in  their  business,  that  there  should  be  any  duty 
on  the  part  of  the  latter  to  exercise  care  in  attempting  to  avoid  losses 
arising  from  acts  of  the  public  enemy.  But  it  must  be  understood 
that,  while  these  corporations  stand  in  a  most  peculiar  relation  to- 
ward the  government,  in  that  they  do  not  have,  strictly  speaking,  the 
same  senses  which  a  real  human  possesses,  and  that  their  privileges, 
duties  and  exemptions  are  different,  in  some  respects,  to  a  private 
citizen,  yet  tHey  are  considered,  under  the  rules  of  law,  to  be  classed 
and  comprehended  under  the  term  "citizen."  It  is  the  duty  of  every 
citizen — whether  he  be  but  a  common  layman,  toiling  through  the 
chilly  climes  of  the  ISTorth  or  the  sultry  suns  of  the  South,  in  the 
faithful  performance  of  his  manual  services;  or,  whether  he  be  a 
bonded  officer  in  the  discharge  of  his  official  duties — to  protect  the 

'«Halliclav  v.  Kennard.  12  Wall.  254. 


§    360]  DUTIES  UNDER  COMMON   LAW.  347 

government  in  its  laws  and  in  its  property.  To  this  extent,  as  all 
other  citizens,  these  corporations  must  extend  a  willing  hand.  And 
whenever  it  is  possible  for  them,  by  exercising  due  and  reasonable 
care,  to  protect  any  property  of  the  government,  or  any  citizen 
thereof,  from  the  depredation  or  destruction  of  the  public  enemy,  it 
most  assuredly  is  part  of  their  duty  to  do  so. 

§  360.     Same  continued — mobs,  strikes,  etc. 

Under  the  ancient  rule,  carriers  were  not  exonerated  for  losses 
caused  by  the  acts  of  mobs,  or  other  riotous  persons;  but  the  strin- 
gency of  this  rule  has  been  somewhat  relaxed  by  the  more  modern  au- 
thorities. They  are  still  held  liable  for  all  losses  caused  by  such  acts, 
but  are  not  liable  for  loss  in  the  transportation  of  goods  by  any  de- 
lay caused  thereby.  There  is  a  difference,  however,  in  the  applica- 
tion of  this  rule  to  carriers  and  to  telegraph  and  telephone  com- 
panies. As  a  general  rule,  the  latter  companies  are  not  liable  for 
losses  arising  from  acts  of  mobs  and  other  riotous  persons.  The  acts 
of  the  mob  stand,  with  respect  to  these  companies,  in  almost  the  same 
categoiy  as  those  of  the  public  enemy.  The  different  means  and  in- 
strumentalities through  which  they  accomplish  their  respective  cor- 
porate purposes  bring  about  the  difference  in  the  application  of  this 
rule.  It  is  never  presumed  that  mobs  intend  to  take  possession  of 
goods  and  convert  them  to  their  o^^^l  use :  and,  the  tangible  property 
to  such,  being  in  the  custody  of  the  carriers,  they  are  more  able  to 
protect  and  deliver  them  safely  to  the  consignee;  and,  as  has  been 
said,  they  are  not  liable  for  losses  caused  by  such  delay.  On  the 
other  hand,  the  main  and  principal  object  of  mobs  and  other  riotous 
persons,  who  interfere  with  the  business  of  telegraph  companies,  is 
to  prevent  and  obstruct  the  transmission  of  news;  especially,  until 
they  shall  have  accomplished  some  particular  purpose.  As  has  often 
been  said,  they  are  never  held  liable  as  insurers,  unless  an  express 
agreement  has  been  entered  into  to  that  effect.  And  for  the  reason 
that  they  are  not  in  possession  of  the  tangible  property  of  the  mes- 
sage in  transit,  they  do  not  have  the  same  opportunity  to  protect  it 
as  the  carrier  has  his  goods.  It  is  the  duty,  however,  of  these  com- 
panies, where  they  have  been  thus  interfered  with,  to  make  a  reasou- 
.iblc  effort  to  transmit  tlie  toleii'rani  bv  other  lines  or  bv  other  means; 


o4S  TELEGRAPH   AXD    TELEPIIOXE    CO-MPAXIES.  [§    360 

and  on  a  failure  to  do  so,  they  ^Yill  be  keld  lial)le  for  all  losses  snf- 
fered. 

§  361.     Same  continued — strikes,  not  liable — must  supply  places. 

The  same  rule  applies,  where  the  mob  is  composed  of  employees  of 
the  company  who  are  on  a  strike.  One  of  the  most  puzzling  questions 
which  confront  these  large  corporations  and  other  public  institutions 
in  this  day  and  time  is,  How  they  may  be  able  to  manage  and  control 
their  employees  to  their  best  interest,  and  at  the  same  time  faithfully 
discharge  the  duties  the^^  owe  to  the  public?  The  term  "strike"  is 
applied  commonly  to  a  combined  eifort  on  the  part  of  a  body  of  work- 
men employed  by  the  same  master  to  enforce  a  demand  for  higher 
wages,  shorter  hours,  or  some  other  concession,  by  stopping  work  in 
a  body  at  a  prearranged  time,  and  refusing  themselves  to  resume 
work,  or  often  allowing  other  to  tender  their  services  to  assist  in  car- 
rying on  such  work,  until  the  demanded  concession  shall  have  been 
granted."  There  is  a  distinction  to  be  drawn  between  the  liabilities  of 
common  carriers  and  telegraph  companies,  for  the  acts  of  their  re- 
spective employees,  w^hose  object  is  to  accomplish  some  of  the  above 
mentioned  concessions.  Common  carriers,  being  insurers,  are  liable- 
for  all  losses  caused  by  the  acts  of  their  employees  while  on  a  strike ; 
provided,  the  same  has  not  become  such  as  would  be  considered  a 
crime  or  an  unlaw'ful  act  of  the  employees.  For  a  loss  resulting 
solely  from  lawless  violence  of  men  not  in  the  employment  of  the 
company,  the  latter  will  not  be  responsible,  even  though  the  men, 
whose  violence  caused  the  loss,  had  but  a  short  time  before  been  em- 
ployed by  the  company.  ■''^  If  they  have  employed  other  competent 
men  within  a  reasonable  time  to  supply  the  places  of  the  striking  em- 
ployees, but  these  have  been  prevented  from  accepting  employment 
by  the  violent  acts  of  the  latter,  they  will  not  be  liable  for  any  loss 
resulting  thereby.^''  Telegraph  companies  are  not  insurers  and  are 
not,  therefore,  liable  for  losses  caused  by  the  acts  of  their  employees 
while  on  a  strike.     If,  however,  the  strike  has  been  caused  by  any 


'^Anderson's     L.     Diet.;     Black's    L.  '' Pittsburf,',  ete.,  R.  Co.  v.  Ilozen,  84 

Diet.;    Bouvier's    L.    Diet.;     Delaware,       111.   .30. 
etc.,  Pv.  Co.  V.  Bowers,  .58  X.  Y.  582.  '» Id. 


>    3G3]  DUTIES  UNDER  COMMOX  LAW.  340 

fault  of  the  company,  in  unreasonably  rctlncing  the  wages  of  the  em- 
ployees, or  increasing  the  time  of  service  unreasonably  long,  or  in 
otherwise  refusing  to  grant  reasonable  concessions  to  them,  it  will  be 
liable.  TelegTaph  companies  must  exercise  reasonaljle  diligence  in 
making  an  effort  to  supply  the  places  of  the  employees  with  compe- 
tent men;  and  on  a  failure  so  to  do,  tluy  will  be  liable  for  all  losses 
resulting  therefrom.  If  the  strike  is  among  the  employees  discharg- 
ing a  certain  particular  line  of  business,  and  the  same  can  be  per- 
formed by  those  who  have  not  made  a  strike,  it  is  the  duty  of  the 
company  to  see  that  the  latter  discharges  this  duty. 

§  362.     Same  continued — in  cases  of  express  contracts. 

Where  a  t('k'gra])h  company  makes  an  express  contract  with  the 
sender,  wherein  it  undertakes  without  limitation  or  qualification  to 
safely  transmit  and  (Icliver  a  message  within  a  time  definitely  fixed 
by  contract,  the  fact  that  a  mob,  or  the  employees  while  on  a  strike, 
prevents  the  company  from  performing  the  contract,  will  not  exon- 
erate it  from  liability  for  a  loss  suffered  during  the  transmission  of 
the  message.  It  is  necessary  in  these  contracts,  as  in  those  expressly 
made,  wherein  these  companies  enlarge  their  common-law  liability 
with  respect  to  losses  caused  by  the  act  of  God  or  the  public  enemy, 
that  the  extra  risk  or  hazard  assumed  must  be  very  explicitly  given ; 
for  if  there  is  any  doubt  or  ambiguity  on  the  face  of  the  contract,  it 
will  be  construed  most  forcibly  in  favor  of  the  company.  So,  it  will  be 
very  clearly  seen  that  there  is  a  marked  distinction  between  cases 
where  there  is  no  express  contract  to  transmit  and  deliver  within  a 
limited  time  and  cases  where  there  is  such  an  express  contract.  An 
express  contract,  binding  a  telegraph  company  to  transmit  a  message 
irrespective  of  its  being  interfered  with  by  any  act  of  God  or  the 
public  enemy,  will  not  bind  the  com|)aiiy  for  losses  caused  by  the  act 
of  a  mob  or  that  of  a  strike. 

§  363.     Connecting  lines. 

As  has  been  seen,  a  telegraph  company  may  enter  into  an  express 
contract  to  transmit  and  deliver  safely  certain  messages  intrusted  to 
it,  irrespective  of  the  liabilities  from  which  it  may  have  been  exon- 


350  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [§    363 

erated  under  the  common  law.  In  other  words,  it  may  make  an  ex- 
press contract  to  transmit  a  message  correctly  or  be  liable  for  any 
losses  incurred  by  a  failure  to  do  so,  although  such  loss  may  be  the 
result  of  an  act  of  God  or  the  public  enemy,  or  acts  of  mobs  or 
strikes.  But  where  such  contract  is  entered  into  between  the  sender 
and  a  telegraph  company,  it  will  not  bind  a  connecting  company  over 
whose  lines  it  is  necessary  to  transmit  the  message,  even  though  it  is 
the  custom  to  transmit  messages  over  these  connecting  lines.^^  If, 
however,  there  is  an  express  agreement  with  the  connecting  com- 
pany to  assume  all  risk  or  undertaking  of  the  initial  lines ;  or,  if  they 
are  carrying  on  a  partnership  business;  or,  if  they  are  leased  or 
owned  by  the  initial  company,  they  will  be  bound  by  the  contracts  of 
the  former.  It  seems  that  where  they  are  bound  only  by  an  express 
agreement,  this  should  be  conditional  on  the  connecting  company  ac- 
cepting the  message.  As  was  said,  the  companies  could,  under  cer- 
tain circumstances,  refuse  to  enter  into  a  contract  to  this  effect,  and 
the  same  right  should  be  extended  to  a  connecting  company ;  because 
the  conditions  there  stated,  which  would  give  the  initial  company  the 
right  to  refuse  to  enter  into  a  contract  of  this  nature,  might  not  ex- 
ist with  respect  to  this  company  at  the  time  the  message  was  tendered 
to  it,  but  would  with  the  connecting  line.  Of  course  the  initial  com- 
pany would,  nevertheless,  be  liable.  Where  there  is  such  an  extraor- 
dinary risk  assumed,  and  it  is  necessary  for  the  message  to  be  trans- 
mitted over  connecting  lines  to  reach  the  destination,  the  initial  com- 
pany should  ascertain  as  to  whether  the  connecting  company  would 
accept  the  message,  before  the  former  accepts  it.  When  this  is  done, 
and  all  the  connecting  lines  agree  to  accept  the  message,  under  the 
contract  of  the  initial  company,  they  will  then  be  liable. 

§  364.     Negligence  of  the  sender  or  sendee. 

Another  ground  allowed,  under  the  common  law,  for  exonerating  a 
telegraph  company  for  losses  caused  in  a  failure  to  correctly  transmit 
and  deliver  a  message,  is  by  acts  of  either  the  sender  or  sendee. 
There  is  no  consideration  of  policy  which  demands  that  these  com- 
panies should  be  held  to  account  for  an  injury  occasioned    by    the 

=»  Smith  V.  West.  U.  Tel.  Co.,  84 
Tex.  359,  31  Am.  St.  Rep.  59,  19  S. 
W.  441. 


(^    365]  DUTIES  UNDER  COMMON  LAW.  351 

sender  or  sendee's  own  act;  and  it  is  immaterial  whether  or  not  such 
act  of  either  of  these  parties,  causing  the  loss,  amounts  to  negli- 
gence.2^  Thus,  if  the  sender  fails  to  address  the  message  correctly; 
or,  where  he  fails  to  make  prepayment  of  charges  on  demand;  or, 
where  the  operator,  who  is  the  sender,  fails  to  correctly  transmit  and 
loss  is  incurred,  the  company  will  not  be  liable.  When  the  addressee 
misconstrues  an  ambiguous  telegram ;  or,  when  he  refuses  to  pay  the 
extra  charges  for  delivery  beyond  the  free  delivery  limit,  his  acts  will 
exonerate  the  company  for  any  loss  caused  thereby. 

§  365.     Proximate  cause — burden  of  proof. 

When  a  telegraph  company  relies  on  the  defense  that  the  cause  of 
the  loss  was  the  act  of  a  mob  or  that  of  a  strike  of  its  own  employees, 
it  must  be  shown  that  this  act  was  the  proximate  cause  of  the  loss, 
since  if  any  wrong  or  negligence  of  the  company  contributed  to  the 
act,  the  company's  act  will  be  presumed  to  be  the  proximate  cause  of 
the  loss;  and  the  burden  of  proof  is  cast  upon  it  to  show  that  the 
proximate  cause  of  the  loss  was  the  act  of  the  mob  or  the  strike,  and 
not  any  negligence  on  its  part.  But  in  case  of  any  wrong  or  negli- 
gence on  the  part  of  either  the  sender  or  addressee,  contributing  to 
the  act  which  produced  the  loss,  the  rule  is  different.  There,  the  in- 
jured party  must  show  that  the  loss  or  injury  was  not  caused  by  any 
injury  on  his  part,  but  that  the  proximate  cause  of  the  injury  was 
that  of  the  company. 

^Hart  V.  Chicago,  etc.,  R.  Co.,  69  Crawenshield,  3  Cliff.  (U.  S.)  184,  5 
Iowa    485,    29    N.    W.  597;   Choate  v.       Fed.  Cas.  No.  2691. 


CHAPTER  XVII. 

LIMITING  COMMON   LAW  LIABILITIES. 

366.  Stipulation  in  contract  of  sending. 

367.  Negligence — cannot   contract   against — in   most   states. 

368.  Applicable  to  statutory  penalty. 

369.  May  contract  against  negligence  in  some  states. 

370.  Prohibited  by  statutes  in  some  states. 

371.  Gross  negligence. 

372.  Gross  negligence — what  constitutes. 

373.  Ignorance  of  operator  of  the  locality  of  the  place. 

374.  Conflict  of  laws. 

375.  Stipulation  for  repeating  messages. 

376.  Same  continued — validity  of  such  a  stipulation. 

377.  Same  continued — further  'reasons  for  their  own  protection. 

378.  Same  continued— extra  charge — no  increase  of  duty. 

379.  Same    continued — delay   in    delivery — non-delivery. 

380.  Same  continued— not  a  contract— compared  to  a  bill  of  lad- 

ing. 

381.  Same  continued — contract — no  consideration. 

382.  Same  continued — duress. 

383.  When  requested  to  be  repeated — question  of  fact. 

384.  Same  continued — binding  on  sender  only. 

385.  Times  within  which  claims  are  to  be  presented. 

386.  Same  continued — reasons  for  rule. 

387.  Same  continued — statutory  penalty— applicable. 

388.  Same  continued— not  to  be  prosecuted  by  the  public. 

389.  Stipulation  held  void  as  against  public  policy. 

390.  When  limitation  begins  to  run. 

391.  Same    continued — delay  in    receiving    messages — does    not 

modify  stipulation. 

392.  Same  continued— unaware  of  wrong — not  binding. 

393.  Compliance  with  stipulation — what  constitutes. 

394.  Same  continued — waiver  of  written  claim. 

395.  Same  continued — nature  of  the  claim. 

396.  Must  be  presented  to  proper  officer. 

397.  Commencement  of  suit^whether  sufficient  notice. 

398.  Contrary  holding — better  view. 

399.  Limiting  liability  to  specific  amount. 

400.  Same  continued— nature  of— liquidated  damages. 

401.  Same  continued^insured — same  rule.  ■ 

402.  Night  messages — time  to  be  delivered. 

403.  Unavoidable  interruption — special  contract. 

404.  Over  connecting  lines — stipulation — exemptions. 

405.  Stipulation  against  cipher  messages— valid. 

(352) 


<§    366]  COMMON  LAW  LIABILITIES,  353 

40G.  Same  continued — contrary  view. 

407.  Where  and  when  messages  accepted. 

408.  Delivery  to  messenger — valid. 

409.  Waiver  of  stipulation  limiting  company's  liability. 

410.  Burden  of  proof. 

411.  Proof  of  assent  to  stipulation. 

412.  Contrary  holding. 

413.  Special  contracts — not  applicable. 

414.  Small  type — not  fraud. 

415.  Assent  of  addressee. 

416.  Same  continued — illustrations. 

417.  Same  continued — actions  in  tort. 

418.  The  correct  view  as  considered. 

419.  Assent — proof  of — what  amounts  to. 

420.  Stipulation   posted  in  company's   office — not   binding. 

421.  Messages  written  on  blanks  of  another  company — binding. 

422.  Same  continued — knowledge  of  company's  stipulations. 

423.  Messages  delivered  to  company  by  telephone  or  verbally. 

424.  Principal  bound  by  the  knowledge  of  the  agent. 

§  366.     Stipulation  in  contract  of  sending. 

Telegrams  are  invariably  written  on  blanks  furnished  by  telegraph 
companies,  on  the  backs  of  which  are  generally  found  stipulations 
exempting  them  from  certain  liabilities,  and  which  are  apparently 
agreed  to  by  the  sender  when  he  attaches  his  signature  thereto.  The 
question  with  which  the  courts  have  been  and  are  still  confronted  is, 
whether  such  contracts  or  stipulations  are  binding,  either  on  the  sen- 
der or  on  the  addressee,  or  on  both  ?  The  courts  are  not  in  harmony 
on  this  subject.  Some  hold  that  some  of  these  stipulations  are  rea- 
sonable and  binding  and  others  hold  that  none  of  them  can  be  en- 
forced; ^  still  others  hold  that  all  of  them  are  binding  where  they  are 
not  in  conflict  with  any  statute  or  against  public  policy.  Many  states 
have  adopted  statutes  which  provide  that  these  companies  may  adopt 
and  enforce  reasonable  rules  and  regulations  for  the  purpose  of  car- 
rying on  their  business,  and  thereby  relieve  themselves  from  some  of 
their  common-law  liabilities ;  and  where  statutes  have  not  been 
enacted  to  this  effect,  the  courts,  in  some  of  those  states,  have  held 

^West.  U.  Tel.  Co.  v.  Reals,  56  Neb.  Xeb.  661,  44  N.  W.   1064.  26  Am.  St. 

415,  76  N.  W.  903,  71    Am.    St.    Rep.  Rep.    363;    West.    U.    Tel.    Co.    v,    Eii- 

682';    Kemp   v.    West.   U.   Tel.    Co.,   28  banks.  100  Ky.  591,  38  S.  W.  1068,  (iO 

T    &  T— 23  '^"'-  St.  Rep.  361,  36  L.  R.  A.  711. 


354 


TELEGRAPH   AXD   TELEPHONE    COMPANIES. 


[§  36G 


that  they  had  the  right,  without  such  statutes,  to  make  such  rules 
and  regulations.  It  is  held  in  most,  if  not  in  all,  of  the  states  that 
the  company  may,  by  a  special  express  contract,  limit  its  common- 
law  liability.  There  is,  however,  some  conflict  among  the  courts  as 
to  how  far  they  may  be  limited  and  what  is  sufficient  to  constitute  a 
valid  special  contract.  The  various  phases  of  these  stipulations  will 
be  considered  in  the  following  sections. 


§  367.     Negligence — cannot  contract  against — in  most  states. 

The  general  rule,  supported  by  the  weight  of  authority  is,  that 
telegraph  companies  cannot  by  any  kind  of  a  contract  exempt  them- 
selves from  losses  caused  by  their  own  negligence  or  that  of  their  ser- 
vants.2     The  rule  rests  upon  the  consideration  of  public  policy  and 


^  VVillock  V.  Pennsj^lvania  R.  Co., 
166  Pa.  St.  184,  30  Atl.  948,  27  L.  R. 
A.  228;  Thomas  v.  Wabash,  etc.,  R. 
Co.,  63  Fed.  200;  Eels  v.  St.  Louis, 
etc.,  R.  Co.,  52  Fed.  903;  Mobile,  etc., 
R.  Co.  V.  Houkins,  41  Ala.  486,  94  Am. 
Dec.  607;  Louisville,  etc.,  R.  Co.  v. 
Grant,  99  Ala.  325;  13  So.  599;  Stand- 
ard, etc.,  Co.  V.  White  Lim.,  etc.,  Co. 
122  Mo.  258,  26  S.  W.  704 ;  Johnson  v. 
Alabama,  etc.,  R.  Co.,  69  Miss.  191,  11 
So.  104;  Squire  v.  New  York,  etc.,  R. 
Co.,  98  Mass.  239,  93  Am.  Dec. 
182;  American  U.  Tel.  Co.  v. 
Dougherty,  89  Ala.  181,  7  So. 
433;  Stiles  v.  West.  U.  Tel.  Co. 
15  Pac.  712;  West.  U.  Tel.  Co.  v.  Short 
53  Ark.  434,  14  S.  W.  649;  West.  U. 
Tel.  Co.  V.  Graham,  1  Colo.  230,  9  Am. 
Rep.  136;  West.  U.  Tel.  Co.  v.  Blanch- 
ard,  68  Ga.  299,  45  Am.  Rep.  480.  Com- 
pare West.  U.  Tel.  Co.  v.  Fontaine,  58 
Ga.  433 ;  Tyler  v.  West.  U.  Tel.  Co.,  60 
111.  421,  14  Am.  Rep.  38;  West.  U. 
Tel.  Co.  V.  Tyler,  74  111.  168,  24  Am. 
Rep.  279;  West.  U.  Tel.  Co.  v.  Meek, 
49  Ind.  53;  West.  U.  Tel.  Co.  v.  Fen- 
ton,  52  Ind.  1;  West.  U.  Tel.  Co.  v. 
Adams,  87  Ind.  598,  44  Am.  Rep.  776; 
West.  U.  Tel.  Co.  v.  Meredith,  95  Ind. 


93;  Central  U.  Tel.  Co.  v.  Swoveland, 
14  Ind.  App.  341;  Sweetland  v.  Illi- 
nois, etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am. 
Rep.  285;  Manville  v.  West.  U.  Tel. 
Co.,  37  Iowa  214,  18  Am.  Rep. 
8;  Harkness  v.  West.  U.  Tel.  Co., 
73  Iowa,  190,  34  N.  W.  811, 
5  Am.  St.  Rep.  762;  Camp 
V.  West.  U.  Tol.  Co.  1  Met.  (Ky.) 
164,  71  Am.  Dec.  461;  Smith  v.  West. 
U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep. 
126;  LaGrange  v.  Southwestern  Tel. 
Co.,  25  La.  Ann.  383 ;  Bartlett  v.  West. 
U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep. 
437 ;  Ayer  v.  West.  U.  Tel.  Co.,  79  Me. 
493,  10  Atl.  495,  1  Am.  St.  Rep.  353; 
West.  U.  Tel.  Co.  v.  Goodbar,  7  So. 
(Miss.)  214;  Reed  v.  West.  U.  Tel. 
Co.,  135  Mo.  661,  37  S.  W.  904,  34  L. 
R.  A.  492,  58  Am.  St.  Rep.  609,  over- 
ruling Wann  v.  West.  U.  Tel.  Co.,  37 
Mo.  472,  90  Am.  Dee.  395;  Kemp  v. 
West.  U.Tel.  Co..  28  Neb.  661,  26  Am. 
St.  Rep.  363.  Compare,  Becker  v. 
West.  U.  Tel.  Co.,  11  Neb.  87,  7  N.  W. 
868,  38  Am.  Rep.  356.  Sherrill  v. 
West.  U.  Tel.  Co.,  116  N.  Car.  655,  21 
S.  E.  429;  Brown  v.  Postal  Tel.  Co., 
HI  N.  Car.  187;  16  S.  E.  172,  17  L. 
i'v.  A.  648,  32  Am.  St.  Rep.  792;  West. 


<^    3G8]  COM.M<J.\    LAW    LIAIULITIKS.  *  355 

upon  the  fact  that  to  allow  the  companies  to  absolve  themselves  from 
the  duty  of  exerci.-iiig-  care  and  fidelity,  would  be  inconsistent  with 
the  very  uature  of  their  undertaking;/'  It  is  the  duty  of  every  citi- 
zen, Avhile  following  his  daily  avocation,  to  exercise  due  care  and 
fidelity  toward  his  fellow  man ;  and  for  any  negligent  failure  to  do 
so,  whereby  the  latter  suffers  loss,  the  former  will  be  liable.  These 
companies  have  assumed  public  functions  and  the  care  and  fidelity 
which  they  owe  the  public  is  even  much  greater  than  those  of  private 
citizens.  In  other  words,  these  parties  do  not  stand  on  equal  footin^^ 
with  telegi-aph  companies,  but  the  latter  has  acquired,  in  considera- 
tion of  public  duties  assumed,  certain  privileges  and  exemptions,  un- 
der the  articles  of  incorporation,  which  are  not  enjoyed  by  the  pul)- 
lic  in  general ;  therefore,  to  permit  them  to  exempt  themselves  from 
liability  caused  by  their  negligence  would,  in  effect,  authorize  them 
to  abandon  the  most  essential  duties  of  thoiv  omployment.^ 

§  368.     Applicable  to   statutory  penalty. 

The  rule  that  a  telegraph  company  cannot  exempt  itself  by  con- 
tract from  losses  caused  by  its  OAvn  negligence  or  that  of  its  seiwants, 
is  applicable  to  statutory  penalties.  Thus,  where  a  company  is  sued 
for  negligently  transmitting  or  (lcli\ering  a  message,  under  a  statute 
imposing  a  penalty  on  telegi'aph  companies  for  failing  to  exercise 
reasonable  care  and  diligence  in  transmitting  or  delivering  messages, 
it  will  be  liable  although  the  message  was  written  on  a  blank  form  of 
the  company,  on  the  l)ack  of  which  was  a  stipulation  purporting  to  be 
a  contract  cxemjiting  the  company  for  any  loss  caused  by  its  negli- 
a'ence,  provided  the  same  was  not  ordered  to  be  repeated.^ 

U.  Tel.  Co.    V.    Gviswold.    .37    Ohio    St.  Co..  til   N't.  4(il.  17  Atl.  70(5.  4  I..  R.  A. 

303,     41      Am.     Rep.     500;      Marr     v.  lillii.   l.')  Am.  St.  Rop.  917;   CaiuU-e  v. 

West.   U.    IVl.   Co.,  85  Tenn.   520,  3   S.  West.   C.  Tel.  Co.,  34  Wis.  471,  17  Am. 

\V.  40(i:    Pepper  v.   West.   U.   Tel.  Co..  Rep.   452;    Thompson  v.   West.   U.  Tel. 

87  Tenn.  554,  4  L.  R.  A.  OGO,   10  Am.  Co.,  G4  Wis.  531.  54  Am.  St.  Rep.  644. 

St.    Rep.    690;    W^est.    U.    Tel.    Co.    v.  ^jjo^iton    v.    St.    Paul.   etc..   R.   Co., 

B;i-osehe.  72  Tex.  654,  13  Am.  St.  Rep.  ol   :Minn.  85,  ir>  X.  W.  407. 

843;  West.  I'.  Tel.  Co.  V.  Neill,  57  Tex.  MVest.    V.    Tel.    Co.    v.      Ciaham.      1 

283.   11    S.   W.   783,  44  Am.  Rep.  589;  Colo.  2.30,  0  Am.  Rep.  140. 

Womack  v.  West.  U.  Tel.  Co..  58  Tex.  "West.  l'.  Tel.  Co.  v.  Adams,  87  Ind. 

17G,  44  Am.  Rep.  614:   Wirtz  v.  West.  508,   44   Am.   Rep.   776;   West.   U.   Tel. 

r.   Tel.   Co.,   7    rtali    44(1.   27    Pae.    172.  Co.    v.    Cobbs.    47    Ark.    334,    1    S.    W. 

;5  L.  K.  A.  .■)10ii:  (;illis  v.  West.  U.Tel.  558,    58   Am.   Rep.    756;    West.   U.   Tel. 


356  TELEGRAPH   AND   TELEPHONE   COMPANIES.  [*§    369 

§  369.     May  contract  against  negligence  in  some  states. 

In  those  states  where  the  lines  are  sharply  drawn  as  to  their  char- 
acter as  common  carrier,  and  where  their  business  is  considered  as 
purelj  of  private  concern,  it  is  held  that  telegraph  companies  may 
limit  their  liability  for  their  own  negligence  or  errors,  especially 
when  arising  from  any  cause  except  willful  misconduct  or  gross  neg- 
ligence ;*  but  the  weight  of  authority  is  to  the  contrary.  And,  in 
these  states  it  seems  that  there  is  a  distinction  bet^veen  slight  or  or- 
dinary negligence  and  such  as  amounts  to  gross  negligence,  or  willful 
default;  and  they  hold  that  these  companies  can  only  contract  against 
liabilities  caused  by  slight  or  ordinary  negligence  ^  and  not  such  as 
are  caused  by  gross  negligence.  As  was  said,  "The  exemption  is  not 
extended  to  acts  or  omissions  involving  gross  negligence,  but  is  con- 
fined to  such  as  are  incident  to  the  service,  and  may  occur  when 
there  is  slight  attaching  culpability  in  its  officers  and  employees."  "^ 
It  has  also  been  held  that  these  companies  could  contract  against  lia- 
bilities of  inadvertence,  but  not  against  gross  negligence,  misconduct 
or  bad  faith.^  The  rule  in  'New  York  seems  to  be  that  while  a  tele- 
graph company  cannot  contract  against  its  own  negligence,    yet    it 

Co.   V.   Buchanan,   35   Ind.   429,   9  Am.  "  Illinois  Central  R.  Co.  v.  Morrison, 

Rep.  744;  West.  U.  Tel.  Co.  v.  Young,  19    111.    136;    Wabash,  etc.,  R.    Co.,  v. 

93  Ind.  118.  Brown,  152  111.  484,  39  N.  E.  273. 

*  West.   U.   Tel.   Co.  v.     Carew,     15  ^  Lassiter  v.  West.  U.  Tel.  Co.,  89  N. 

Mich.  525;  Birkett  v.  West.     U.     Tel.  C.  33G;    Pegram  v.  West.  U.  Tel.  Co., 

Co.,    103   Mich.   361,  50  Am.   St.   Rep.  97  N.  C.  57;   Becker  v.  West.  U.  Tel. 

374,  61  X.  W.  645;  Redpath  v.  West.  Co.,  11  Neb.  87,  7  N.  W.  868,  38  Am. 

U.  Tel.  Co.,  112  Mass.  71,  17  Am.  Rep.  Rep.  356;  Grennell  v.  West.     U,     Tel. 

69;  Wann  v.  West.  U.  Tel.  Co.,  37  Mo.  Co.,  113  Mass.  299,   18  Am.  Rep.  485; 

472,  90  Am.  Dec.  395;   U.   S.  Tel.  Co.  Redpath  v.  West.  U.  Tel.  Co.,  112  Mass. 

V.  Gildersieeve,  29  Md.     232,     96    Am.  71,  17  Am.  Rep.  69. 

Dec.  519;    Hart  v.  West.  U.  Tel.   Co.,  »  Wann  v.  West.  U.  Tel.  Co.,  37  Mo. 

66  Cal.  579,  6  Pac.   637,  56  Am.  Rep.  472,  90  Am.  Dec.  395;   U.   S.  Tel.  Co. 

119.     This  question,  with  full  citation  y.  Gildersieeve,  29  Md.  232;     96     Am. 

of  the  earlier  cases,  is  fully  and  learn-  Dee.    519;    Ilart     v.      West.     U.      Tel. 

edly   considered    in   a   note   of   71    Am.  Co.,  66  Cal.  579;   56  Am.     Rep.     119; 

Dec.  463,  466,  467,  etc.;  West.  U.  Tel.  White  v.  West.  U.  Tel.  Co.,     14     Fed. 

Co.  V.  Stevenson,   128   Pa.  St.  442,  15  710,  5  McCrary   (U.  S.)    103;    MacAn- 

Am.  St.  Rep.  687,  18  Atl.  441;  Pearsall  jrew  v.  Electric  Tel.  Co.,   17   C.  B.  3, 

V.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  21  S4  E.  C.  L.  3. 
Am.  St.  Rep.  662,  26  N.  E.  534. 


^    370]  COMMON   LAW  LIABILITIES. 


357 


may  against  the  nodigcnce  of  its  servants  in  any  degree.®  And  it 
socms  to  be  the  holding  in  other  states  that  they  can  relieve  them- 
selves from  liability  for  negligence  where  the  services  are  done  gratui- 
tously.^'' In  those  states  which  hold  that  these  companies  may  con- 
tract against  liabilities  for  negligence,  the  contract  under  which  they 
claim  the  exemption  must  be  clear  and  free  from  doubt,  for  the  ex- 
emption will  not  be  granted  whoro  the  language  of  the  contract  is  am- 
biguous.^^ 

§  370.     Prohibited  by  statutes  in  some  states. 

In  some  states,  in  which  it  may  have  formerly  been  the  rule  that 
these  companies  could  contract  against  their  own  negligence,  to  some 
extent  at  least,  the  same  has  been  changed  either  by  statute  or  later 
decisions.  Thus,  the  rule  in  Nebraska  has  been  established  by  a 
statute  which  eliminates  considerations  of  degree  of  negligence  in 
this  connection.^-  In  Georgia  it  was  intimated  in  one  case  that  these 
companies  might  restrict  their  liability  except  for  gross  negligence,^^ 
but  in  a  later  case  the  rule  was  announced  that  they  could  not  con- 
tract against  their  negligence  in  any  degree.^"*  In  Texas  it  was  held 
that  the  stipulations  of  these  companies  will  not  extend  to  injuries 
caused  by  the  "misconduct,  fraud  or  want  of  due  care  on  the  part  of 
company,  its  servants  or  agents."  ^^  It  is  held,  however,  that  this 
statute  does  not  extend  to  interstate  messages. ^*^     Statutes  similar  to 

'Maynarcl  v.   Syracuse,  etc..   R.   Co.,  'Mvoiiip  v.  West.  U.  Tel.  Co.,  28  Neb. 

71   N.  Y.   ISO,  27  Am.  Rep.  28;   Nich-  (Uil. 

olas  V.  Xew  York,  etc.,  R.   Co.,  N.   Y.  'MVest.   U.   Tel.   Co.   v.   Fontaine,   58 

370;   Smith  v.  New  York,  etc.,  R.  Co.,  Ga.  433. 

24   N.    Y.    222;    Crogin   v.    Now   York,  "West.  U.  Tel.  Co.  v.  Blanchard,  68 

etc.,  R.  Co.,  51  N.  Y.  61,   10  Am.  Rep.  Ga.   299,  45  Am.  Rep.  480.     See.  also, 

559,  West.  U.  Tel.  Co.  v.     Goodbar,  7     So. 

"Griswold  v.  New  York,  etc.,  R.  Co.,  (Miss.)   214. 

53  Conn.  371:  Higgins  v.  New  Orleans,  'MVest.  U.  Tel.  Co.  v.  Neill,  .57  Tex. 

etc.,  R.  Co.,  28  La.  Ann.  133;  Quimby  283,  44  Am.  Rep.     589;     Womack     v. 

V.  Boston,  etc.,  R.  Co.,  150  Mass.  360,  West.  U.  Tel.  Co.,  58  Tex.  176,  44  Am. 

5  L.  R.  A.  846;  Kinny  v.     Central    R.  Rep.  614. 

Co.,  32  N.  J.  L.  407,  34  N.  J.  L.  513;  '"Missouri  Pac.  R.  Co.  v.  Sherwood, 

Annas   v.   Milwaukee,   etc.,   R.   Co.,   67  84  Tex.  125,  19  S.  W.  455,  17  L.  R.  A. 

Wis.  46.  648;  iMissouri  Pac.  R.     Co.     v.     Inter- 

"Maynard  v.   Syracuse,  etc.,  R.  Co.,  national,   etc.,   Co.,   84   Tex.    140,   19   S. 

71   N.  Y.   180,  27  Am.  Rep.  28.       See  W.  459. 
note  7  for  other  cases. 


358  TELEGRAPH    AXD    TELEPHONE    COMPANIES.  [^    370 

these  have  been  passed  in  other  states,  and  in  one  of  these,  at  least, 
it  was  held  that  such  a  statute  was  not  repugnant  to  the  federal  con- 
stitution as  a  regulation  of  commerce.-''^ 

§  371.     Gross  negligence. 

As  has  been  seen,  there  seems  to  be  a  holding  among  some  of  the 
courts  that  there  are  different  degrees  of  negligence,  or  that  there  is 
a  difference  between  negligence  and  gross  negligence,  but  the  weight 
of  authority  is  that  there  are  no  degrees  of  negligence;  and  yet,  what 
the  term  ''gross  negligence"  means  is  not  to  be  easily  ascertained. 
There  is  authority  for  holding  it  to  be  equivalent  to  fraud  or  inten- 
tional wrong. ^^  But  a  majority  of  the  cases  seem  to  hold  it  to  be  a 
failure  to  exercise  ordinary  care.  It  was  said  by  Baron  Rolfe  that 
he  could  "see  no  difference  between  gross  negligence  and  negligence ; 
that  it  was  the  same  thing  with  vituperative  epithet."  ^^  There  is 
really  no  intelligible  distinction  existing  between  the  two  words,- '^ 
but  if  the  act  of  the  company  should  extend  to  what  might  be  consid- 
ered a  willful  or  intentional  wrong — if  this  is  meant  to  be  gross  neg- 
ligence— there  is  a  distinction.  Telegraph  companies  which  hold 
themselves  out  to  the  public,  must  exercise  the  same  diligence  and 
care  that  any  pradent  and  careful  person  would  do  under  similar 
circumstances,  and  whenever  they  attempt  to  shield  themselves  from 
performing  such  duties  by  claiming  an  exemption  therefrom  by  any 
contract  or  regulation  entered  into  by  them  with  their  patrons,  they 
then  step  beyond  the  bounds  of  right,  justice  and  good  conscience. 
When  they  fail  to  discharge  their  duty  it  is  negligence,  whether  it  be 
simplv  ordinary  or  gross  negligence.^ ^ 

§  372.     Gross  negligence — what  constitutes. 

In  those  states  where  it  is  claimed  that  there  is  a  distinction  be- 
tween negligence,  and  gross  negligence  it  seems  that  it  is  rather  diffi- 

"Hart   V.    Chicago,   etc.,   E.    Co.,    G9  ''^  Gill  is  v.  West.  U.  Tel.  Co.,  Gl  Vt. 

Iowa  485,  29  N.  W.  597.  461,  17  All.  736,  4  L.  R.  A.  611n,  15 

'STones  on  Bailees,  8-46  et  seq.  Am.   St.   Rep.   917;   Aiken  v.  West.  U. 

"Wilson  V.  Brett,  11  M.  &  W.  113.  Tel.  Co.,  5  S.  Car.  358;  Beal  v.  South 

^Hinton  v.  Dibbon,  2  Ad.  &  El.   (U.  Devon  R.  Co.,  3  H.  &  C.  337. 
S.)    646;  Austin  v.  Manchester  R.  Co., 
11  Eng.  L.  &  Eq.  573. 


^  ;j72]  common  law  liabilities.  359 

cult  for  the  courts  therein  to  detenuiiie  what  facts  are  necessary  to 
constitute  gross  negligence.  It  has  been  held  by  some  authorities 
that,  where  a  message  is  improperly  transmitted,  this  is  sufficient  evi- 
dence to  show  gross  negligence  in  the  absence  of  proof  showing  why 
such  error  was  made ;  but  the  weight  of  authority  is  to  the  contrary.^^ 
Thus,  where  the  only  evidence  of  negligence  is  that  the  operator  sent 
in  the  message  the  word  "bain"  for  ''bail,"  it  was  held  that  there  was 
no  proof  of  gross  negligence.  ^^  The  same  rule  is  true  where  the  word 
••fourths"  is  written  instead  of  '•eighths,"  in  a  message  from  an  agent 
informing  his  principal  of  the  price  of  cotton.^^  But  to  make  as 
many  as  three  eiTors  in  a  message  containing  only  nine  simple  words, 
is  gross  negligence.  Thus,  a  message  tendered  to  be  sent  contained 
the  following  words :  "Ship  Bones,  sulky  and  traps  to  Valley  Falls, 
immediately,  G.  Grail;"  and  the  message  received  by  the  addressee 
read,  thus:  "Ship  Beans,  sulky  and  trap  to  iSTeosha  Falls  immed- 
iately, G.  Crawley."  Here  it  was  held  that  the  evidence  showed 
gross  negligence.-^  In  another  case  it  appeared  that  the  message  was 
plainly  written  out  and  not  to  be  easily  mistaken  by  anybody  with 
ordinary  understanding  who  should  examine  it  with  ordinary  care. 
The  operator  materially  changed  the  message  by  transmitting  the 
word,  "Salina"  for  "Salene."  There  being  no  exonerating  or  ex- 
planatory evidence  offered  by  the  company,  the  court  held  that  it  was 
a  case  of  gross  negligence. ^^  It  was  held  gross  negligence  for  the  re- 
ceiving operator,  who  had  been  informed  that  the  message  contained 
nine  words,  to  deliver  the  message  with  only  seven  words.-^  In  or- 
der for  any  court  to  arrive  at  an  accurate  determination  as  to  whether 
a  telegraph  company  has,  in  the  transmission,  committed  an  error 
which  amounts  to  gross  negligence  within  the  meaning  of  the  rule 
stated,  it  is  necessary  for  all  the  facts  and  circumstances  suiTOunding 
the  particular  case  to  be  carefully  considered.     Because  of  the  fact 

"  Pogram  V.  West.  U.  Tel.  Co.,  97  N.  N.    C.    334;    White    v.    West.    U.    Tel 

C.  57;  West.  U.  Tel.  Co.   v.    Neill,    57  Co.,  14  Fed.  710. 

Tex.  283,  44  Am.  Rep.  589;  Becker  v.  "West.  U.  Tel.  Co.  v.  Crall,  38  Kan 

West.  U.Tel.  Co.,  11  Neb.  87,  7  N.  W.  679,  5  Am.  St.  Rep.  795,  17  Pac.  309. 
868,  38  Am.  Rep.  356;  Jones  v.  West.  =»West.  U.  Tel.  Co.  v.     Howell,     3S 

U.  Tel.  Co.,  18  Fed.  717.  Kan.  685,  17  Pac.  313. 

=»Hart    V.  West.  U.  Tel.  Co..  66  Cal.  "West.  U.  Tel.  Co.  v.  Goodbar.  7  So. 

579,  56  Am.  Rep.  1.19.  (Miss.)    214. 

=*Lassiter   v.    West.    U.   Tel.    Co.,   89 


360  TELEGRAPH  AND  TELEPHONE  COMPANIES.        [§  372 

that  different  circumstances  alter  all  cases,  it  would  be  difficult  to  lay 
down  any  fixed  rule  by  which  courts  might  be  guided.  An  error  of  a 
single  word,  in  the  transmission  of  a  message,  may  or  may  not 
amount  to  gross  negligence. 

§  373.     Ignorance  of  operator  of  the  locality  of  the  place. 

It  is  the  duty  of  telegraph  operators  to  know  the  localities  of  the 
towns  in  the  state  to  which  their  lines  extend,  and  the  ignorance  of 
the  operator  of  such  a  fact,  especially  where  it  is  of  sufficient  near- 
ness to  the  office  in  which  he  works  or  is  of  some  importance,  whereby 
he  fails  to  make  a  transmission  thereto,  is  evidence  of  gross  negli- 
gence. Thus,  where  the  message  was  addressed  to  a  party  at  the 
county  seat  of  the  adjoining  county,  it  was  held  gross  negligence  in 
him  sending  it  to  another  place."^  The  court  said,  in  this  case : 
"That  if  the  agent  of  a  company  should  not  know  of  the  existence  of 
a  town  which  is  the  county  seat  of  a  neighboring  county,  the  town 
being  one  of  the  stations  on  the  lines  of  the  company,  shows  his  utter 
unfitness  for  the  position  .  .  .  the  company  was  guilty  of  gross 
negligence  in  employing  such  an  operator."  In  another  case  it  was 
held  by  the  court  that  the  operators  are  bound  to  know  the  locality  of 
any  state  to  which  a  message  is  sent.^^  It  was  held  that  an  error  in 
the  name  of  the  destination,  unexplained,  is  evidence  of  gross  negli- 
gence.^^  And  where  the  message  has  not  been  sent  at  all,  it  is  purely 
evidence  of  gross  negligence.^  ^ 

§  374.     Conflict  of  laws. 

It  has  been  held  that  the  contract  exempting  telegraph  companies 
from  common-law  liabilities  must  be  proved,  as  a  matter  of  evidence, 
according  to  the  law  of  the  forum ;  ^^  but  the  general  rule  is  that  the 
law  of  the  place,  w^hcre  the  contract  of  sending  is  made,  and  not  that 
of  the  state  to  which  the  message  is  sent  or  where  the  error  occurred, 

^West.  U.  Tel.  Co.  v.  Buchanan,  35  785    (message   directed    to    Toledo  sent 

Ind.  429,  9  Am.  Rep.  744.  to  Chicago), 

^  West.   U.   Tel.   Co.   v.   Simpson,   73  ""  Garrett  v.  West.  U.  Tel.     Co.,     83 

Tex.  422.  Iowa,  257,  49  N.  W.  88. 

^West.  U.  Tel.  Co.  v.     Howell,     38  '^  Gildhall,  58  Fed.   796;   Hoadley  v. 

Kan.  685,  17  Pac.  313;  Po.stal  Tel.  Ca-  Northern  Transf.  Co.,  115  Mass.  304. 
ble  Co.  V.  Robertson,  36    Misc.  (N.  Y.) 


<^    375]  COMMON  LAW   LrAIilLlTIES.  361 

governs  as  to  its  nature,  validity  and  interpretation.''"  So  it  has  been 
held  that,  if  the  state  in  which  the  contract  of  sending  is  made  does 
not  give  these  companies  the  right  by  statute  to  contract  against  com- 
mon-law liabilities,  they  cannot  exonerate  themselves  from  losses  or 
injuries  caused  in  another  state,  and  one  in  which  they  may  limit 
their  liabilities,  even  though  the  action  is  brought  in  the  latter  state.^^ 
As  said  in  the  above  case,  "One  state  cannot  be  made  the  dumping 
ground  for  lawsuits  between  citizens  of  another  state  when  they  can- 
not recover  from  each  other  in  their  own  state,  where  they  made  the 
contract."  But  if  the  law  of  the  state  in  which  the  contract  is  made 
is  not  pleaded  or  shown,  it  will  be  presumed  to  be  the  same  as  that  in 
which  the  suit  is  brought,^^  especially  where  the  common  law  pre- 
vails in  the  latter  state.  While  this  is  the  general  rule,  yet  there  may 
be  exceptions  to  it,  founded  upon  the  supposed  intention  of  the  par- 
ties, gathered  from  surrounding  circumstances.  Thus,  if  it  be  gath- 
ered from  circumstances  surrounding  the  particular  case  that  it  was 
the  intention  of  the  parties  to  be  bound  by  the  laws  of  the  state  in  or 
through  which  the  message  was  sent,  and  not  by  those  of  the  state  in 
which  the  contract  of  sending  was  made,  the  rule  of  law  in  the  former 
state  must  control  in  the  construction  of  the  contract.^®  It  is  also  a 
general  rule  that  a  contract  will  not  be  enforced  if  it  would  be  against 
the  policy  and  institution  of  the  state  in  which  it  is  sought  to  be  en- 
forced. 

§  375.     Stipulation  for  repeating  messages. 

The  blanks  commonly  used  by  telegraph  companies  contain  a  stip- 
ulation to  the  effect  that  they  will  not  be  liable  for  errors,  delays  or 
non-delivery  of  messages  for  more  than  the  amount  received  by  them 
for  transmission,  unless  the  same  is  ordered  to  be  repeated.  The  stip- 

=*West.,  etc..  R.  Co.     v.     Exposition  lins,    10!)   Wis.   477,  85   X.   \V.   703,   83 

Cotton  Mills,  81  Ga.  522,  7  S.  E.  916,  Am.  St.  Eep.  928. 

2  L.  R.  A.  102;  Liverpool,  etc.,  Co.  v.  "Palmer   v.    Atchison,    etc.,    R.    Co., 

Phoenix  Ins.  Co.,  129  U.  S.  397,  9  Sup.  101  Cal.  187,  35  Pac.  G30. 

Ct.  R.  469;  Dj-ke  v.  Erie,  etc.,  R.  Co..  "'Burnett  v.  Pennsylvania  R.  Co..  31 

45  N,  Y.  113,  6  Am.  Rep.  43.  Atl.  972;  Clark     on     Contracts,     503; 

"*  Show  V.  Postal,  etc.,  Cable  Co.,  79  Whart.  Conft.  L.  388 ;  Story.  Cpnft.  L. 

Miss.  670,  31  So.  222,  89  Am.  St.  Rep.  371,  §244. 
G66,  56  T..  i;.  A.  48(i:   Bartlett  v.  Col- 


362  TELEGRAPH   AND   TELEPHOI^E    COMPAjSTIES.  [<^    375 

ulatiou  has  not  varied  in  form  or  language  from  that  now  used  bj  the 
Western  Union  Telegraph  Company.  It  provides  that:  "To  guard 
against  mistakes,  the  sender  of  the  message  should  order  it  repeated, 
that  is,  telegraphed  back  to  the  original  office.  For  re})cating,  one- 
half  the  regular  rate  is  charged  in  addition.  And  it  is  agreed  be- 
tween the  sender  of  the  following  message  and  this  company,  that  the 
said  company  shall  not  be  liable  for  mistakes  or  delays  in  the  trans- 
mission or  delivery,  or  for  non-deliveiy  of  any  unrepeated  message, 
beyond  the  amount  received  for  sending  the  same ;  nor  for  mistakes 
or  delays  in  the  transmission  or  delivery,  or  for  non-delivery  of  any 
repeated  messages  beyond  fifty  times  the  sum  received  for  sending 
the  same,  unless  specially  insured.^' 

§  376.     Same  continued — validity  of  such  a  stipulation. 

The  validity  of  the  stipulations  in  the  blank  form  by  which  these 
companies  have  attempted  to  exonerate  themselves  for  all  losses 
caused  by  errors  made  in  the  transmission  or  delays  in  delivering 
messages,  except  the  amount  received  for  sending,  unless  the  message 
is  ordered  to  be  repeated,  has  been  variously  viewed  by  the  courts; 
yet  the  weight  of  authority  is,  that  they  are  void  and  unenforcible.^^ 

^Alabama. — American  U.  Tel.  Co.  v.  Eep.  744;  West.  U.  Tel.  Co.  v.  Adams, 

Dougherty,  89  Ala.  191,     7     So.     660;  87   Ind.  598,  44  Am.  Rep.  777;   West, 

West.  U.  Tel.  Co.  v.  Crawford,  110  Ala.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53. 

460,  20  So.   Ill;   West.  U.  Tel.  Co,  v.  Iowa. — Sweetland  v.     Illinois,     etc., 

Cliamblee,  122  Ala.  428,  25  So.  232.  Tel.    Co.,    27    Iowa,    433,    1    Am.    Rep. 

Arkansas.— West.     U.     Tel.     Co.     v.  285 ;  Mandville  v.  West.  U.  Tel.  Co.,  37 

Short,    53   Ark.    434.  Iowa  214,  18  Am.  Rep.  8. 

Colorado.— West.     U.     Tel.     Co.     v.  Kentucky.— West.  U.  Tel.  Co.  v.  Eu- 

Graham,  1  Colo.  239,  9  Am.  Rep.  136.  banks,  100  Ky.  591,  38  S.  W.  1068,  36 

Georgia.— West.  U.  Tel.  Co.  v.  Elan-  L.  R.  A.  711,  66  Am.  St.     Rep.     361; 

chard,  68  Ga.  299,  45  Am.  Rep.  480.  Postal  Tel.  Cable  Co.  v.  Scheafer,  62  S. 

/Hmois.— Tyler  v.  West.  U.  Tel.  Co.,  W.  1119,  23  Ky.  L.  Rep.  344. 

60  111.  421,  14  Am.  Rep.  38;  West.  U.  Maine.— Ajer  v.  West.   U.  Tel.    Co., 

Tel.  Co.  V.  Tyler,  74  111.   168,  24  Am.  79  Me.  493,  1  Am.  St.  Rep.  353,  10  Atl. 

Rep.  279;  West.  U.  Tel.  Co.  v.  Harris,  493. 

19  111.  App.  347;  North  Packing,  etc.,  Minnesota. — Francis  v.  West.  U.Tel. 

Co.  V.  West.  U.  Tel.  Co.,  70  111.  275.  Co.,  58  Minn.  252,  49  Am.  St.  Rep.  507, 

Indiana.— West.  U.  Tel.  Co.  v.  Fen-  25  L.  R.  A.  406,  59  N.  W.  1078. 

ton,   5^  Ind.   1 ;    West.   U.  Tel.   Co.  v.  Missouri.— Reed  v.  West.  U.  Tel.  Co., 

Todd,  22  Ind.  App.  701;  West.  U.  Tel.  135  Mo.  601;  37  S.  W.  904,  34  L.  R.  A. 

Co.  V.  Buchanan,  35  Ind.  429,  9  Am.  492,   58  Am.   St.   Rep.   609,   overruling 


§  .377] 


COMMOX   LAW   LIAIJILITIKS. 


36:] 


These  courts  considered  these  stipidatioiis  as  a  mere  device  for  avoid- 
ing liabilities  for  acts  of  their  own  negligence  or  willful  wrongs.  As 
has  been  seen,  they  cannot  enforce  any  regulation  or  contract,  by 
means  of  which  they  may  relieve  themselves  for  any  losses  caused  by 
their  own  negligence  or  ihat  of  their  servants.  Any  rule  which  seeks 
to  relieve  them  from  exercising  their  employment  with  diligence, 
skill  and  integrity  contravenes  public  policy  as  well  as  the  law,^*  and 
whenever  they  attempt  to  avoid  these  duties,  they  do  so  at  the  ex- 
pense of  and  injury  to  their  patrons.^^  These  companies  claim  that, 
as  they  are  required  to  exercise  very  great  care  and  diligence  in  mak- 
ing an  accurate  transmission  of  messages,  this  is  the  best  means  of 
l)erforming  this  duty,  and  for  this  reason  the  regulation  is  a  reason- 
able one.  This  is  unquestionably  true,  but  that  is  no  reason  why 
they  should  not  in  the  exercise  of  reasonable  care  in  transmitting  the 
messages  delivered  to  them,  repeat  such  messages  in  order  to  avoid 
mistakes  and  errors,  irrespective  of  an  agreement  to  that  effect.  It 
does  not  require  very  much  more  time  to  repeat  the  message,  and  the 
expense  is  but  little  increased. 

§  377.     Same  continued — further  reasons  for  their  own  protection. 

These  companies  have  accepted  valuable  privileges  from  the  pub- 
lic, and  in  consideration  of  these  they  have  undertaken  to  do  certain 

378;  Gulf,  etc.,  R.  Co.  v.  Wilson,  69 
Tex.  739,  7  S.  W.  653;  West.  U.  Tel. 
Co.  V.  Tobin,  5G  S.  W.  540;  West.  U. 
Tel.  Co.  V.  Norris,  25  Tex.  Civ.  App. 
43,  60  S.  W.  982;  West.  U.  Tel.  Co.  v. 
Fxagland,  61  S.  W.  421;  Mitchell  v. 
West.  U.  Tel.  Co.,  12  Tex.  Civ.  App. 
262,  33  S.  W.  1016;  West.  U.  Tel.  Co. 
V.  Nagle,  1 1  Tex.  Civ.  App.  539. 

Utah.— \Wertz  v.  West.  U.  Tel.  Co.. 
7  Utah  446,  13  L.  R.  A.  510n.  27 
Pac.  172. 

Vermont.— GiWis  v.  West.  U.  Tel. 
Co.,  61  Vt.  461,  4  L.  R.  A.  61  In,  15 
Am.  St.  Rep.  917,  17  Atl.  736. 

Wisconsin. — Thompson  v.  West.  U. 
Tel.  Co.,  64  Wis.  531,  54  Am.  Rep.  644. 

^West.  U.  Tel.  Co.  v.  Blanchard,  68 
Ga.  229,  45  Am.  Rep.  480. 

^Ayer  v.  West.  U.  Tel.  Co.,  79  Me. 
493,  1  Am.  St.  Rep.  353,  10  Atl.  495. 


Wann  v.  West.  U.  Tel.  Co.,  37  Mo.  472, 
90  Am.  Dec.  395. 

Nebraska. —West.  U.  Tel.  Co.  v 
Lowry,  32  Neb.  732,  49  N.  W.  707 
Kemp  V.  West.  U.  Tel.  Co.,  28  Neb 
661,  44  N.  W.  1064,  26  Am.  St.  Rep 
363 ;  West.  U.  Tel.  Co.  v.  Reals,  56  Neb 
415,  71  Am.  St.  Rep.  682,  76  X.  W.  903 

'North  Carolina. — Brown  v.  Postal 
Tel.  Cable  Co.,  Ill  N.  Car.  187,  16  S. 
E.  179,  17  L.  R.  A.  648,  32  Am.  St. 
Rep.  793,  overruling  Lassiter  v.  West. 
U.  Tel.  Co.,  89  N.  Car.  334;  Thompson 
V.  West.  U.  Tel.  Co.,  107  N.  Car.  449. 
12  S.  E.  447. 

Tennessee. — Marr  v.  West.  U.  Tel. 
Co.,  85  Tenn.  529;  Pepper  v.  West.  U. 
Tel.  Co.,  87  Tenn.  554,  4  L.  R.  A.  660. 
10  Am.   St.  Rep.   699. 

Texas.— West.  U.  Tel.  Co.  v.  Bur- 
row,  10  Tex.  Civ-  App.   122,  30  S.  W. 


364  TELEGKAPII   AXD   TELEPHONE    COMPANIES,  [<§,    377 

duties  for  the  public — that  is,  to  exercise  due  care  in  transmitting  all 
messages  presented  to  them  after  payment  of  the  charges ;  and  to  ex- 
ercise due  diligence  to  find  and  deliver  to  the  addressee  a  copy  of  the 
same.  In  order  for  them  to  perform  these  duties,  they  must  provide 
themselves  with  proper  and  suitable  instruments,  and  employ  skilled 
operators.  When  a  message  is  presented,  with  payment  of  charges, 
the  sender  has  done  what  the  law  requires  of  him.  He  has  performed 
his  part  of  the  contract  entered  into  between  him  and  the  company, 
the  same  being  that  Avhich  the  Jatter  holds  itself  out  to  the  public  to 
be  ever  willing  and  ready  to  perform.  It  then  devolves  upon  the 
company  to  comply  with  its  part  of  the  contract — that  is,  to  exercise 
good  faith,  due  care  and  diligence  in  the  transmission  and  delivery 
of  the  message.  As  was  said :  "If  their  wires  and  instruments  are 
in  proper  order,  and  their  operators  skillful,  and  careful,  it  will  tra- 
verse the  wires  precisely  in  the  words  and  figures  which  composed  it 
when  placed  upon  the  wires,  and  is  sure,  in  that  shape  and  foiiu,  to 
reach  its  destination,  no  atmospheric  causes  intervening  to  pre- 
vent." ^^  To  hold  that  a  company  could  exempt  itself  from  any  lia- 
bility by  such  a  stipulation  would  be  relieving  it  from  duties  which 
have  been  placed  upon  it  in  exchange  for  a  valuable  right  which 
none  save  it  could  enjoy — the  right  of  eminent  domain.  They  are  as 
much  bound  to  perform  this  duty  as  a  public  carrier  is  to  deliver 
safely  the  goods  in  its  charge. 

§  378.     Same  continued — extra  charge — no  increase  of  duty. 

The  additional  charges  for  reiDcating  the  message  do  not  increase 
the  duty  which  the  company  owes  to  the  public,  and  that  which  was 
prescribed  inferentially  in  the  granted  privileges.  There  is  nothing 
on  the  part  of  the  sender's  contract  which  could  be  considered  as  in- 
creasing this  duty.  It  is  not  such  a  charge  as  to  make  the  company 
insurers,^  ^  since  they  are  not  so  held  by  the  common  law.  It  is  not  a 
contractual  consideration,  for  there  is  nothing  given  by  the  company 
in  return  for  the  consideration.  Then,  it  must  only  be  an  additional 
source  of  revenue  to  the  company  and  a  protection  to  the  latter  for  its 
own  negligence;  it  can  be  nothing  else — a  free  gift  which  is  within 

«West.  U.  Tel.  Co.  v.  Tyler,  74  111.  "Tyler  v.  West.  U.  Tel.  Co.,  60  111. 

168,  24  A)n.  Eop.  280.  421,  14  Am.  Rep.  51. 


■§    379]  COMMON    LAW   LIA15IL11IKS.  365 

the  discretion  of  the  render  to  make.  The  sender  presents  a  telegram 
to  be  sent  and  the  company  says  what  it  will  charge  for  sending 
same ;  this  being  paid,  the  company  must  then  exercise  that  care  and 
diligence  in  transmitting  and  delivering  the  message  correctly  that 
riny  person  would  exercise  under  similar  circumstances,  for  himself. 
How  this  duty  must  Ix'  performed  is  left  entirely  with  the  company. 
If  it  should  deem  it  proper  and  advisable  tliat  the  message  should  be 
repeated  in  order  to  determine  whether  or  not  the  duty  had  been  per- 
formed, then  it  should  repeat  the  message,^-  and  that,  too,  without 
any  extra  charge  or  consultation  with  the  sender.  If  it  cannot  cor- 
rectly transmit  messages  without  repenting  them,  they  should  be  re- 
j)eated,  but  in  either  instance,  it  cannot  exempt  itself  from  losses 
caused  by  a  failure  to  transmit  correctly. 

§  379.     Same  continued — delay  in  delivery — non-delivery. 

Another  reason  why  these  stipulations  should  not  be  binding  is, 
that  they  are  not  provided  for  with  a  view  to  enable  these  companies 
to  make  a  correct  transmission  of  messages,  but  rather  to  protect  them 
from  liability.  In  these  contracts  it  is  stipulated  that  the  company 
will  not  be  liable  for  a  failure  to  make  a  prompt  delivery,  or,  in 
other  words,  they  will  not  be  liable  for  losses  caused  by  a  delay  in  the 
delivery  or  non-delivery  of  the  message,  unless  it  is  ordered  to  be  re- 
peated. As  it  may  be  clearly  seen,  the  object  in  repeating  a  message 
is  to  ascertain  whether  it  has  been  correctly  transmitted  and  not 
whether  it  has  been  promptly  delivered  at  all.  If,  after  having  the 
message  repeated,  it  was  ascertained  that  it  had  been  correctly  trans- 
mitted, this  fact  would  not  remedy  a  loss  caiTsed  by  a  failure  to  de- 
liver promptly  or  for  a  non-delivery.  To  exonerate  a  company  from 
losses  caused  by  acts  of  the  company  which  could  not  be  prevented 
by  repeating  the  message,  would  of  course  be  absurd."*^  As  will  be 
seen,  some  courts  hold  tliat  while  the  stipulation  may  be  reasonable 
in  so  far  as  its  object  is  to  protect  the  company  from  loss  caused  by 
errors  made  in  the  transmission,  yet  it  is  not  reasonable  when  its  fur- 
ther object  is  to  protect  the  company  from  loss  caused  by  a  delay  in 
delivery  or  for  non-delivery. 

"Ayor  V.   West.   U.  Tel.  Co.,  70  ]Me.  ^  Thoinp-on    on    KlcitiiiMty,    §241. 

4!)3,  1   Am.  St.  Kop.  855,  10  Atl.  495. 


366  Ti-:j.Et;K'Arii   am)   rKi.iaMio.M-:  co.mi'Axies.  [^  380 

§  380.     Same  continued — not  a  contract — compared    to  a    bill    of 
lading. 

Whether  or  not  the  i^aper  on  which  the  sl'ikIcv  writes  the  message. 
and  to  which  he  attaches  his  name,  is  a  contract  and  such  as  will  bind 
him  to  all  the  stipulations  contained  therein,  depends  upon  circum- 
stances ■*■*  which  will  be  discussed  hereafter.  The  general  rule  is, 
that  a  receii)t  or  bill  of  lading,  when  assented  to  by  the  consignor,  is 
a  contract  between  him  and  the  shipper,  and  all  reasonable  stipula- 
tions therein  contained  are  binding  on  both.'^^  In  order,  however, 
for  the  receii:)t  or  bill  of  lading  to  be  binding,  the  minds  of  the  par- 
tics,  as  in  other  cases,  must  meet;  that  is,  the  terms  of  the  contract 
must  be  accepted  and  assented  to  by  the  consignor.  It  has  1)ecn  lield 
that  when  the  terms  of  the  bill  of  lading,  or  the  stipulations  con- 
tained therein,  are  sufficiently  clear  and  conspicuous,  and  the  con- 
signor has  signed  his  name  thereto,  this  fact  is  prima  facie  evidence 
that  he  has  assented  to  the  terms  of  the  contract.  The  blank  forms 
furnished  b}^  telegraph  companies  to  their  patrons,  and  on  which  the 
messages  are  required  to  be  written  cannot  be  compared  with  the  re- 
ceipts or  bills  of  lading  of  carriers,  with  respect  to  their  contractual 
nature,  because  the  contract  is  not  the  same.  One  of  the  main  inci- 
dents to  telegraph  companies  is  to  accomplish  their  purposes  in  the 
shortest  time  possible.  Quickness  and  celerity  is  the  life  and  main- 
spring of  their  existence.  It  is  seldom  that  a  "person  applies  to  these 
companies  for  sendee  unless  his  business  is  of  the  utmost  importance 
and,  therefore,  needs  immediate  attention,  For  these  reasons  he  has 
not  time  to  deliberate  and  consider  the  stipulations  contained  in 
these  blank  forms  and  reject  them  if  they  should  not  be  acceptable. 
This  is  not  always  the  case  with  the  consignor  of  goods.  In  the  lat- 
ter case  the  advantages  of  each  are  more  equal.  There  is  also  some- 
thing given  by  the  carrier  to  the  consignor,  in  the  nature  of  consid- 
eration, to  enforce  the  stipulation,  which  is  not  given  in  the  former 
case,  and  which  will  be  hereafter  considered.     It  may  be  proper  to 

**  Tyler  v.   West.  U.  Tel.  Co.,  Gl   111.  7.3  N.  Y.   ,S.5I,  29  Am.  Eep.   1G3;   Erie 

421,  14  Am.  Rop.  45.  etc,   R.    Co.   v.   Dater,   91    111.    195,   3.3 

*' Steele    v.    Townsend,    37    Ala.    247,  Am.   Rep.   51;    Mobile,   etc.,   R.   Co.   v. 

79   Am.    Dec.    49;    Cincinnati,   etc.,    R.  VVeiner,  49     Mi.ss.     725;     Levering     v 

Co.  V.  Pontins,  19  Ohio  St.  221,  2  Am.  Union  Transfer,  etc.,  Co.,  42  Mo.  88. 
Rep.  391 ;  Hill  v.  Syracuse,  etc.,  R.  Co. 


•^    ,3S1]  COMMON   LAW   LIAltlMTIES.  307 

state  hero,  that  wlicre  the  stipuhitioiis  are  reasonable,  the  same  rtile 
will  apply  to  both  of  these  companies.  Tlie  above  variance  in  the 
application  of  the  rule  is  where  it  is  necessary  that  a  special  express 
contract  shall  l)o  made  to  exempt  these  companies  from  the  nsnal 
conmion-law  liabilities. 

§  381.     Same  continued — contract — no  consideration. 

It  is  a  general  rule  of  the  law  of  contracts  that,  in  order  for  an 
agreement  between  two  parties  to  be  valid  and  enforcible,  then- 
minds  must  not  only  come  together  at  the  same  time  with  respect  to 
the  same  subject  matter,  but  there  must  be  a  mutual  consideration. 
In  the  cases  in  ^vhich  the  courts  held  that  the  receipts  or  bills  of  lad- 
ing were  contracts,  there  were  mutual  corfsiderations.  The  consignor 
agreed  to  release  the  carrier  of  some  of  the  eonunoii-law  liabilities  in 
consideration  of  the  latter  making  a  reduction  in  the  charges  for 
shipping.^"  In  the  case  of  a  telegTam,  however,  the  facts  are  dif- 
ferent. It  is  very  clear  that  there  is  an  additional  charge  exacted  of 
the  sender,  and  it  is  presumed  to  be  a  consideration;  but,  in  order  for 
it  to  be  such,  there  must  be  given  something  in  return  for  its  value, 
and  unless  there  is,  the  first  is  not  a  consideration,  but  rather  a  gift — 
as  said,  an  additional  source  of  revenue.  Telegraph  companies  are 
public  servants,  and  it  is  their  duty  as  such  to  exercise  a  veiy  great 
dearee  of  care  to  make  correct  and  accurate  transmission  of  all  mes- 
sages  tendered  to  them.  In  order  to  do  this  it  devolves  upon  them  to 
employ  skilled  and  competent  servants'*'  and  prepare  themselves 
with  all  the  modern  facilities  and  improvements.  Then,  any  act 
on  the  part  of  the  sender  in  compensating  them  additionally  for  re- 
peating the  message,  increases  this  obligation  or  duty.  These  com- 
panies hold  themselves  out  to  the  public  to  be  ready  and  willing  to 
perform  certain  duties  with  the  greatest  degree  of  care  and  fidelity. 
Then,  is  it  ]-)0ssible  for  them  or  any  other  party  entering  into  a  con- 
tract for  a  valuable  consideration,  to  promise  and  not  to  promise,  or 
to  create  and  not  to  create  an  obligation  or  duty,  at  one  and  the  same 
moment  and  by  one  and  the  same  act  ?    The  inconsistency  and  impos- 

"Tyler  v.  West.   U.  Tel.  Co..  GO  111.  '"  Sweetlaiul  v.  Illinois,  etc..  Tel.  Co.. 

■121,   14  Am.   Rep.   50.     Compare   T.   C.       27  Iowa,  4.33.  1  Am.  Rep.  202. 
]\.  Co.  V.  Moni^.m.   l'.>   111.   1.30. 


36S  TELEGRAPH   AND   TELEPHONE    COMPANIES.  ['§    381 

sibility  of  such  thiugs  are  obvious.'*^  A  further  question  which  pre- 
sents itself  is,  Can  this  stipulation  be  considered  a  contract  whereby 
the  company  has  bound  itself  as  an  insurer  ?  These  companies  are 
not  insurers  under  the  common  law  and,  unless  made  so  either  by 
statute  or  by  a  special  express  contract  to  that  effect,  they  will  be  re- 
quired to  exercise  only  the  greatest  degree  of  care,  and  not  as  insurers 
of  absolute  correct  transmission  of  messages  under  any  and  all  cir- 
cumstances. They  may,  as  has  been  seen,  bind  themselves  as  in- 
surers, but  in  order  to  do  so,  it  must  be  done  by  an  express  contract 
made  by  a  properly  authorized  officer  of  the  company.  The  amount 
of  the  risk  must  also  be  specified  in  the  contract,  and  paid  at  the 
time  of  sending  the  message.*^  So,  it  is  very  clear,  that  for  these  rea- 
sons, these  stipulations  cannot  be  considered  contracts  whereby  the 
companies  bind  themselves  as  insurers.  Neither  can  it  be  said  that 
there  is  any  consideration  given  by  these  companies  in  exchange  for 
the  extra  charges  paid  by  the  sender  for  repeating  the  message. ^° 

§  382.     Same  continued — duress. 

These  companies  have  become  very  important  factors  in  the  com- 
mercial world,  and,  in  fact,  they  have  become  almost  matters  of  nec- 
essity, without  which  the  progress  of  our  country  would  be  seriously 
retarded.^^  Being  of  such  vital  interest  to  our  commercial  welfare, 
and  clothed  with  many  privileges  and  exemptions  not  enjoyed  by  the 
people  at  large,  they  must  exercise  their  business  with  care  and  fidel- 
ity and  not  take  any  advantage  of  their  position  over  the  patrons  who 
seek  their  services.  As  has  been  said,  their  services  are  most  often 
employed  at  a  time  when  the  party  employing  them  is  not  in  aposition 
to  consider  contracts  which  attempt  to  exempt  them  from  performing 
their  public  duties,  and  at  a  time  when  the  employer  would  be  wil- 
ling to  undergo  almost  any  risk  to  accomplish  the  purpose  for  which 
the  message  is  to  be  sent.  To  give  the  companies  the  power  to  enforce 
these  stipulations  would  not  only  have  a  tendency  to  destroy  and  ham- 

*»Bartlett   v.    West.   U.   Tel.   Co.,    G2  108,  24  Am.  Rep.  281;  Candee  v.  West. 

Me.  209,  16  Am.  Rep.  444.  I'.  Tol.  Co.,  34  Wis.  471,  17  Am.  Rep. 

"Tyler  v.  West.  U.  Tel.  Co.,  GO  111.  452. 

421,  14  Am.  Rep.  50.  "  Smith  v.  West.  U.  Tel.  Co.,  83  Ky. 

"West.  U.  Tel.  Co.  v.  Tyler,  74  Til.  10+.   4  Am.   St.  Rep.   LSO. 


§  382] 


COM.NrOX   T.AW   LIABILITIES. 


360 


per  the  objects  for  which  they  were  incorporated,  but  it  would  also 
give  them  the  power  to  take  advantage  of  their  situation,  and  be  able 
to  enforce  a  contract  induced  by  a  species  of  moral  duress.^^  The 
weight  of  authority,  for  these  reasons,  seems  to  be  opposed  to  uphold- 
ing such  stipulation."''^ 


-■•Jl"  it  be  a  contract,  the  sender  en- 
iciing   into   it  was   under  a  species   of 
moral  duress.     His  necessities  compell- 
ed  him    to   resort   to   the   telegi-aph   as 
the  only  means  through  which  he  could 
speedily  transact  the  business  in  hand, 
and   was   compelled   to  submit  to  such 
conditions   as  the  company,     in     their 
corporate  greed,  might  impose  and  sign 
such  papers  as  the  company  might- pre- 
sent.    Credentials,  rules     and     regula- 
tions,  such   as   the   company   is   autho- 
rized by  statute  to  establish,  cannot  be 
understood  to  embrace  such  regulations 
as    shall    deprive    a    party    of    the    use 
of  their  instrumentalitj',  save  by  com- 
ing   under    most    onerous    and    unjust 
conditions."  Tyler  v.  West.  U.  Tel.  Co., 
00  111.  421,  14  Am.  Rep.  51.     In  Gillis 
V.   West.   U.  Tel.   Co.,   61   Vt.  461,   17 
.\tl.  736,  4  L.  E.  A;  61  In,  15  Am.  St. 
Itep.  917,  the  court,  said:      "Telegi'aph 
companies  do  not  deal  with  their  em- 
ployers on  equal  terms.     There  is  a  ne- 
cessity  for  their  employment. 
Neither  the  commercial  world  nor  the 
general  public  can  dispense  with  their 
services.     It  is,  therefore,  just  and  rea- 
sonable that  they  should  not  be  allow- 
ed to  take  advantage  of  their  situation, 
and  of  the  necessities  of  the  public,  to 
exact  exemption  from  that  measure  of 
fluty  that  the  law  imposes  upon  them, 
and  that  public  policy   imposes."    See, 
also,   Dorgan  v.   West.  U.   Tel.   Co.,    1 
Am.   L.   T.   Rep.   N.   S.   406;    West.   U. 
Tel.  Co.  v.  Griswold,  37  Ohio  St.  311, 
41   Am.   Rep.   500;    Marr  v.   West.   U. 
Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496. 

"West.  U.  Tel.  Co.  v.  Short,  53  Ark. 
4.S4,    14   S.   W.   649;   American   U.   Tel. 
Co.   v.   Dougherty,   89   Ala.    191,   7    So. 
T.  &  T.— 24 


660; West.    U.    Tel.    Co.    v.    Graham,    1 
Colo.  230,  9  Am.  Rep.  136 ;   West.  U.  Tel. 
Co.  V.   Blanchard,  68  Ga.  299,   45  Am. 
Rep.  480;   West.  U.  Tel.  Co.  v.  Meek,  49 
Ind.   53;   West.   U.  Tel.  Co.  v.  Fentoii, 
52  Ind.  1 ;  West.  U.  Tel.  Co.  v.  Harris, 
19    111.   App.    347;    Tyler  v.    West.    U. 
Tel.  Co.,  60  ill.  421,  14  Am.  Rep.  38; 
West.  U.  Tel.  Co.  v.  Tyler,  74  ill.  168, 
24  Am.  Rep.  279;  Sweetland  v.  Illinois, 
etc.,  Tel.  Co.,  27  Iowa  433,  1  Am.  Rep. 
285;  Ayer  v.  West.  U.  Tel.  Co.,  79  Me. 
493,   1  Am.  St.  Rep.  353,   10  Atl.  495; 
West.   U.   Tel.   Co.  v.  Lowry,   32   Neb. 
732,  49  N.  W.  707;  Kemp  v.  West.  U. 
Tel.   Co.,  28   Neb.   661,  44  N.  W.   1064 
(stipulation   declared   invalid   by   stat- 
ute) ;     Brown     v.     Postal    Tel.     Cable 
Co.,     Ill     N.     C.     187,     16       S.       F. 
179,      17      L.      R.      A.      648,      overrul- 
ing    Lassiter     v.       West.       U.       Tel. 
Co.,  89  N.  Car.  334;  Marr  v.  West.  U. 
Tel.   Co.,   85   Tenn.   529,   3   S.   W.   496; 
Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn. 
554,  11  S.  W.  783,  4    L.    R.    A.     660, 
10  Am.  St.  Rep.  699;   Wertz  v.  West. 
U.  Tel.  Co.,  7  Utah  446,  27  Pac.   172, 
13  L.  R.  A.   576n;    Gillis   v.  West.   U. 
Tel.  Co.,     61     Vt.     461,     17  Atl.  736, 
4     L.     R.     A.     611n,     15     Am.       St. 
Rep.     917;      Thompson     v.     West.   U. 
Tel.        Co.,        64        Wis.        531,        84 
Am.    Rep.    644;    Bartlett   v.   West.   U. 
Tel.  Co.,  62  M.>.  209,  16  Am.  Rep.  437; 
True  v.  International  Tel.  Co.,  60  Me. 
9,  11  Am.  Rep.  156;  Candee    v.    West. 
U.  Tel.  Co.,  34  Wis.  471,  17  Am.  Rep. 
452;    West.   U.   Tel.   Co.  v.  Richmond, 
8  Atl.  171;   Bimey  v.  New  York,  etc., 
Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  607; 
:\Ionville  v.  West.  U.  Tel.  Co.,  37  Iowa, 


370  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [§    383 

0 

§  383.     When  requested  to  be  repeated — question  of  fact. 

In  those  jurisdictions  in  which  it  is  held  that  telegraph  companies 
may  exempt  themselyes  from  losses  caused  by  errors  made  in  the 
transmission  of  messages,  unless  the  same  is  ordered  repeated,  it  is 
a  question  of  fact  to  be  decided  by  a  jury  as  to  whether  or  not  the 
company  was  ordered  to  repeat  the  message.  In  a  certain  case,  de- 
ciding this  point,  when  it  appeared  that  on  receipt  of  the  dispatch 
the  plaintiff,  the  addressee,  went  at  once  to  the  operator  and  re- 
quested him  to  ask  the  sender  whether  certain  words  were  "five  six" 
or  "five  sixty,"  it  was  held  that  this  amounted  to  a  request  by  the 
plaintiff  to  have  the  message  repeated,  and  that  it  was  immaterial 
whether  or  not  the  forms  established  by  the  company  for  the  repeat- 
ing of  messages  were  complied  with.^^ 

§  384.     Same  continued — binding  on  sender  only. 

The  above  case  was  brought  by  the  addressee  and  not  by  the  sen- 
der ;  it  seems  that  the  stipulation  as  to  repeating  is  not  a  matter  to  be 
considered — except  under  certain  circumstances — when  the  suit  is 
brought  by  the  addressee.  "The  receiver  can  be  guided  or  informed 
solely  by  what  is  delivered  to  him,  and  has  no  opportunity  to  agree 
upon  any  such  conditions  before  delivery,"  ^^  But  whether  this  is 
always  the  case  depends  upon  the  view  in  which  the  addressee's  right 
of  action  is  regarded.  It  was  held,  in  one  case,  that  the  express  stip- 
ulation in  the  contract  of  sending  binds  the  receiver  as  well  as  the 
sender,^^  and  it  is  considered  by  Mr.  Thompson,  in  his  work  on 
Electricity,  that  in  so  far  as  the  receiver's  right  of  action  rests  in 
contract,  he  is  bound  by  the  agreement  entered  into  by  the  sender  as 
much  so  as  the  sender  himself.  But,  "if  the  telegraph  company, 
when  it  delivers  an  erroneous  message  to  the  person  to  whom  it  is  ad- 
dressed by  the  sender,  puts  itself  in  the  condition  of    a    mere    tort- 

214,  18  Am.  Rep.  8;  U.  S.  Ex.  Co.  v.  ^De  La  Grange  v.  Southwestern  Tel. 

Backman,  23  Ohio  St.   155;     Lamb    v.  Co.,  25  La.  Ann.  383;  Tobin  v.  West. 

Camders,  etc.,  Co.,  46  N.  Y.  271,  7  Am.  U.  Tel.   Co.,    146  Pa.  St.   375.  20  Atl. 

Rep.  327;  So.  Ex.  Co.  v.  Moon,  39  Miss.  324,  28  Am.  St.  Rep.  802. 

822.  '« Aiken  v.    West.   U.   Tel.   Co.,   5   S. 

»*West.  U.  Tel.  Co.  v.     Laudis,     21  Car.  358. 
Am.  &  Eng.  Cas.   (Pa.)  206. 


<^    385]  COMMON   LAW   LIAHILITII-IS.  371 

feasor,  one  guilty  of  a  misfeasance  toward  a  stranger  by  which  that 
stranger  has  incurred  a  loss,  then  this  conclusion  (i.  e.,  that  the  re- 
ceiver is  not  bound)  is  supportable. "^'^ 

§  385.     Times  within  which  claims  are  to  be  presented. 

The  blank  forms  on  which  the  messages  are  to  be  written  generally 
contain  stipulations  providing  that  all  claims  against  the  company 
for  failure  to  transmit  messages  correctly  must  be  presented  in  writ- 
ing, and  within  a  certain  prescribed  time.  The  language  of  these 
stipulations  is  generally  as  follows:  ''The  company  will  not  be  lia- 
ble for  damages  or  statutory  penalties,  in  any  case,  where  the  claim 
is  not  presented  in  writing  within  thirty  days  after  the  message  is 
filed  with  the  company  for  transmission."  When  the  sender  signs 
these  forms,  these  stipulations  enter  into  and  become  a  part  of  the 
contract  of  sending.  ^^  There  is  a  difference  of  opinion  on  this  sub- 
ject, as  to  whether  they  are  reasonable  and  enforcible,  but  the  bet- 
ter weight  of  authority  is  that  they  are  valid  stipulations.  They  do 
not  at  all  exempt  or  relieve  the  company  from  performing  its  duties 
in  a  faithful,  diligent  and  careful  manner,  being  still  held  to  the 
same  responsible  duty.  Neither  does  it  lead  to  an  affirmance  of  a 
right  to  contract  for  relief  against  responsibilities  for  negligence ; 
nor  does  it  put  them  in  the  power  of  the  company  to  nullify  or  evade 
the  law  f^  but  such  stipulations  do  relieve  the  company  somewhat 

"Thompson   on  Electricity,   §237.  17   j\Io.  App.   257;   Young  v.   West.  U. 

"Hill  V.   West.   U.  Tel.   Co.,  85  Ga.  Tel.  Co.,  65  N.  Y.  163;  Wolf  v.  West. 

425;  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  a.  Tel.   Co.,  62  Pa.   St.  83;    West.  U. 

542,  4   So.  844;    West.  U.  Tel.   Co.  v.  Tel.  Co.  v.  Rainis,  63  Tex.  27;   West. 

Henderson,  89  Ala.  510,  7   So.  419,  18  U.   Tel.   Co.   v.   Reynolds,   77   Va.    173. 

Am.  St.  Rop.  148;  West.  U.  Tel.  Co.  v.  46   Am.    Rep.    715;    Hartzog   v.    West. 

Cobbs,    47    Ark.    344;     1    S.    W.    558;  V.  Tel.  Co.,  84  Miss.  448,  36  So.  539. 

West.  U.  Tel.  Co.  v.  Dunfield,  11  Colo.  105  Am.   St.  Rep.   459;     Hermann     v. 

335;  West.  U.  Tel.  Co.  v.  IMeredith,  95  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N. 

Ind.  23;  West.  U.  Tel.  Co.  v.  Jones,  95  W.   32,   Beasley  v.  West.   U.  Tel.   Co.. 

Ind.  228,  48  Am.  Rep.  713;   West.  U.  39  Fed.  181. 

Tel.  Co.  v..McKibben,  114  Ind.  511,  14  '» Harris  v.  West.  U.  Tel.     Co.,     121 

N.  E.  894;  West.  U.  Tel.  Co.  v.  Yopst,  Ala.  519,  25  So.  910,  77  Am.  St.  Rep. 

118     Ind.     248,     20     N.     E.     222,     3  70;  West.  U.  Tel.  Co.  v.  Jones,  95  Ind. 

L.    R.    A.    224n;     Cole    v.    West.    U.  228,  48  Am.  Rep.  713;    West.  U.  Tel. 

Tel.     Co.,      33;       Minn.      227;      Mas-  Co.   v.   Yopst,   118    Ind.   248,  20  N.   E. 

sengale     v.       West.       U.       Tel.       Co.,  222,  .S   L.   R.   A.   224n;    West.  U.  Tel. 


372  TELEGRAIVir    AXD    TKLEI'HOXE    COMPANIES.  [§    385 

from  being  hold  for  some  alleged  liabilities,  about  Avliich  it  would  be 
unable  to  make  a  proper  and  expedient  defense/''*  In  order,  how- 
ever, for  these  stipulations  to  be  reasonable,  the  time  within  "which 
the  presentation  is  to  be  made  must  be  reasonably  long  to  enable  the 
party  claiming  damages  to  become  aware  of  the  injury  and  to  pre- 
sent his  claim  properly.  Thus,  it  has  been  held  that  a  stipulation 
was  reasonable  which  required  all  claims  against  the  company  to  be 
presented  within  sixty  days  ^^  after  the  filing  of  the  message  for 
transmission.  It  has  also  been  held  that  thirty  days,'''-  and  even 
twentj^  days,'*'^  was  a  reasonable  time  to  limit  the  presentation  of 
these  claims.  But  the  reasonableness  of  any  particular  time  may 
vary  according  to  circumstances.*'^  It  was  held  in  one  case  that  seven 
days  was  a  reasonable  time  to  give  the  injured  party  for  presenting 
his  claim. ^^ 

§  386.     Same  continued — reasons  for  rule. 

There  is  no  question  but  that  these  regulations  are  equitable,  pro- 
vided the  time  in  which  they  are  to  be  made  is  reasonable.^*^  It  is  a 
general  rule  that  a  common  carrier  may  make  and  prescribe  a  certain 
limited  time  within  which  all  claims  must  be  presented.  These  corn- 
Co.  V.  Dougherty,  54  Ark.  221,  15  S.  Colo.  335;  Cole  v.  West.  U.  Tel.  Co., 
W.  468;  So.  Ex.  Co.  v.  Colwell,  21  33  Minn.  228;  Massengale  v.  West.  U. 
Wall.    (U.  S.)   264.  Tel.  Co.,    17   Mo.   App.   257;    West.  U. 

«» Id.  Tel.  Co.  V.  Culberson,  79  Tex.  65,  15  S. 

«MVest.  U.  Tel.  Co.  v.  Way,  83  Ala.  W.  219;  West.  U.  Tel.  Co.  v.  Pells,  2 
542,  4  So.  844;  West.  U.  Tel.  Co.  v.  Tex.  L.  Eev.  246;  Beasley  v.  West.  U. 
Dougherty,  54  Ark.  221,  15  S.  W.  468;  Tel.  Co.,  39  Fed.  181.  Compare,  John- 
Hill  V.  West.  U.  Tel.  Co.,  85  Ga.  425 ;  ston  v.  West.  U.  Tel.  Co.,  33  Fed.  362 ; 
West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  So.  Ex.  Co.  v.  Caperton,  44  Ala.  101^ 
248,  20  N.  E.  222,  3  L.  R.  A.  224n;  4  Am.  Rep.  118,  holding  such  a  stipu- 
West.  U.  Tel.  Co.  v.   Jones,   95   Ind.   228,       lation  void. 

48  Am.  Rep.  713;   Young  v.  West.  U.  "^  Aiken   v.   West.   U.   Tel.   Co.,   5    S. 

Tel.  Co.,  65     N.     Y.     163;     Sherrill  v.       Car.    358;    Heimann   v.    West.    U.    Tel. 
West.  U.  Tel.  Co.,  109  N.  Car.  527,  14      Co.,  57  Wis.  562,  10  K  W.  32. 
8.  E.  94;   Wolf  V.   West.  U.  Tel.  Co.,  «*  Massengale  v.   West.   U.    Tel.    Co., 

62  Pa.  St.  83,  1  Am.  Rep.  387;  West.       17  Mo.  App.  257. 

U.  Tel.  Co.  V.  Rains,  63  Tex.  27;  West.  «=  Louis  v.  Great  West.  R.  Co.,  5  H. 

U.  Tel.  Co.  V.  Brown,  84  Tex.  54,  19  S.      &  N.  807. 

W.  336;  Tester  v.  West.  U.  Tel.  Co.  84  «"  West.  I'.  Tel.  Co.  v.  Jones,  05  Ind. 

Tex.  313,  19  S.  W.  256.  228,  4S   Am.   Kcp.  710. 

"MVest.   C.  Tel.    Co.  v.    Dunfidd,    11 


(^     3S(J  I  COMMON    LAW    r.IAI'.II.nil. 


373 


]ianios  ni-c  iiisunix  of"  the  CMods  iiitnistod  to  tlioiii  aiul  can  onlv  Ijc  ro- 
lifvod  of  lialiiliiv  for  loss  cansod  liy  llic  acts  of  (;od  <.r  tlio  i)nblic 
OTicmv.  At  coiiiiiioii  law.  IclciiTapli  coiiiiianics  arc  not  li<'l<l  to  the 
^ame  strict  lialiiliiv.  'riicn.  if  a  conmioii  carrior  can  make  and  en- 
force such  stiimlalioiis.  llicrc  should  hv  a  ,<iTeatcr  reason  why  tele- 
oraph  companies  should  do  so."'  These  stipulations  do  not  operate 
as  a  limitation  of  the  time  within  which  ^uit  may  be  brought,  but 
they  are  dcsieiied  merely  to  give  the  company  notice  of  the  claim,  in 

..i-der  that   it  may   l.e   investigate.!    pr pily.      >ressages  are  usually 

di-stroyed  after  Ix-ing  kept  six  months,  and  the  company's  ability  to 
defend  would  naturally  be  affected  by  a  delay  in  its  being  informed 
of  a  claim.  If  a  sender  of  a  message  has  sustained  a  loss  by  the 
failure  of  the  company  to  ]iroi)erly  transmit  it,  he  could  very  easilj' 
ascertain  this  fact  within  sixty,  thirty,  twenty,  or  even  within  a 
shorter  time,  after  the  message  was  hied,  and  it  would  be  no  unrea- 
sonable rule  to  require  Iiiiu  to  ]>roinprly  notify  the  company  of  this 
fact  in  order  that  the  latter  might  remedy  the  loss  or  defend  itself 
for  such.  The  object  in  transacting  business  over  telegraph  lines  is 
to  accomplish  the  desired  results  in  the  shortest  time  possible,  and 
surely  the  sender  of  the  message  Avould  find  out  very  soon  after  it  was 
filed  whether  or  not  the  message  had  acconii)lished  its  purpose:  and 
it  would  be  no  burden  or  inconvenience  on  his  part  to  notify  the  com- 
pany that  the  objects  had  not  been  accom]dished,  to  his  loss.  The 
presumptions  are,  that  if  he  fails  to  notify  the  company  of  the  im- 
proper transmission  of  the  message,  the  rights  acquired  under  this 
aoTcement  are  waived.''^  Another  reason  justifying  the  reasonable- 
ness of  the  provision  for  notice  of  the  cbiiiu.  is  found  in  the  multi- 
tude of  messages  transmitted  requiring  a  speedy  knowledge  of  claims 
to  enable  the  company  to  keep  an  account  of  its  transactions,  b' fore, 
bv  reason  of  their  great  number,  they  cease  to  be  within  their  recol- 
lection and  control.'''* 

"•Wolf   V.   Wost.    f.   Tel.   Co..   CrJ    I'a.  'Wnlf   v.    WV^t.    T.    IVl.   Co..   &>    I'a. 

S3,  1  Am.  Kep.  387.  J^-".   '     \'"-   '''''l'-  '■^^'^ 

*«Wost.  V.  Tel.  Co.  V.  Jones,  05  Iiul. 
228,  48  Am.  Ucp.  716. 


374  TELEGRAPH   AND   TELEPHONE   COMPANIES.  [§    387 

§  387.     Same  continued — statutory  penalty — applicable. 

In  many  states  there  are  statutes  which  impose  a  penalty  upon 
telegraph  companies  for  a  failure  to  properly  perform  their  duties, 
and  the  question  has  come  up  in  several  instances  as  to  whether  these 
stipulations  were  applicable  to  such  claims.  In  some  states,  as  in 
Arkansas,  it  has  been  held  that  they  were  not  applicable  J  ^  In 
Greorgia  it  is  held  that  while  the  stipulation  does  not  apply  to  claims 
for  the  statutory  penalty,  it  does  apply  to  all  claims  for  special  dam- 
ages, and  operates  not  only  against  the  sender  of  a  message,  but  also 
against  the  receiver,  where  the  message  is  in  reply  to  a  previous  mes- 
sage sent  by  the  receiver.'^  ^  "While  this  is  the  holding  in  some  states, 
the  majority  of  the  states  hold,  however — and  the  preponderance  of 
authority  is  to  that  effect — that  these  stipulations  are  as  applicable 
to  statutory  penalties  as  they  are  to  any  other  elaims."^- 

§  388.     Same  continued — not  to  be  prosecuted  by  the  public. 

As  was  ably  said  by  Judge  Elliott  on  this  subject :  ''The  penalty 
provided  by  the  statute  is  given  to  one  who  contracts  with  a  tele- 
graph company  for  the  transmission  of  a  message,  and  it  is  not  a  pen- 
alty recoverable  by  public  prosecution,  but  is  one  for  which  a  civil 
action  will  lie.  ITor  is  the  civil  action  for  the  benefit  of  the  public, 
for  the  formal  right  of  action  and  the  entire  beneficial  interests  are 
exclusively  in  the  individual  who  contracts  with  the  company  in  the 
particular  instance.  The  case  is  therefore  entirely  unlike  public 
prosecutions  for  offenses  affecting  the  community  at  large,  which  are 
conducted  by  public  officers  and  in  which  individuals  have  no  private 
interest.  Penalties  given  exclusively  to  private  individuals  may  be 
compounded,  while  penalties  prescribed  for  purely  public  offenses 
cannot  be,  even  though  part  of  the  penalty  be  given  to  the  in- 
former." "^^  But  it  has  been  held  that  these  stipulations  were  not  ap- 
plicable to  an  addressee  who  was  attempting  to  recover  the  statutory 
penalty.''*     And  in  order  for  the  company  to  take  advantage  of  the 

'"West.  U.  Tel.  Co.  v.  Cobbs,  47  Ark.  U.   Mel.   Co.,  42  Mo.  App.   546;    West. 

344,  1  S.  W.  558,  58  Am.  Rep.  756.  U.  Tel.  Co.  v.  Meredith,  95  Ind.  93. 

"West.  U.  Tel.  Co.  v.  James,  90  Ga.  "West.  U.  Tel.  Co.  v.  Yopst,  118  Ind. 

254,  16  S,  E.  83.  248,  20  N.  E.  222,  3  L.  R.  A.  224n. 

'2  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  '*  West.  U.  Tel.  Co.,  v.  McKibben,  114 

228,  48  Am.  Rep.  713;  Barrett  v.  West.  Ind.  511,  14  N.  W.  890. 


^    389]  COMMON  LAW   LIABILITIES.  375 

plaintiff's  failure  to  present  the  claim  within  the  required    time,    it 
must  be  specially  pleaded."^ '^ 

§  389.     Stipulation  held  void  as  against  public  policy. 

It  is  held  in  some  jurisdictions  that  these  stipulations,  requiring 
all  claims  against  telegraph  companies  to  be  presented  within  a  cer- 
tain fixed  time,  are  void  in  that  they  are  against  public  policy  and  as 
an  attempt  to  establish  limitations  which  are  fixed  by  the  general 
statutes  of  limitation.'"  As  was  said:  ''It  would  introduce  into  tho 
local  jurisprudence  of  every  state,  territory  and  country,  a  species  of 
private  statutes  of  limitation  or  non-claim.  It  would  avoid  the  policy 
of  the  state  in  the  matter  of  the  time  in  which  actions,  both  in  tort 
and  contract,  should  be  brought."  ^^  Another  reason  why  the  stipu- 
lation is  not  reasonable  is  that  it  furnishes  the  company  a  means  of 
avoiding  liability  for  its  negligence,  in  that  the  injured  party  may 
possibly  not  know  of  his  loss  in  time  to  comply  with  the  requirements 
of  the  stipulation.'^  8  In  Nebraska  it  is  held  that  if  these  stipulations 
are  viewed  as  a  contract  between  the  telegraph  company  and  the  sen- 
der, they  are  void,  as  there  is  no  consideration  given."^^  It  will  be 
<)bservcd,  however,  that  in  most  of  the  cases  which  hold  that  these 
itipulations  are  unreasonable  and  void,  the  validity  of  these  stipula- 
tions was  denied  on  the  ground  that  they  could  not  be  made  applica- 
ble to  actions  for  the  statutory  penalty,  or  to  the  addressee.^"  Thus, 
in  Indiana  it  has  been  held  that  an  addressee  of  a  message,  suing  to 

"West.    U.   Tel.   Co.    v.    Scircle,    lO.'i  illation  which  has     the  effect     to     pi  - 

Ind.  227.  elude  from  the  right  of  action  the  per- 

"  Johnston  v.  West.  U.  Tel.  Co.,   33  son  to  whom  a  prepaid  telegram  is  di- 

Fed.  302;   West.  U.  Tel.  Co.     v.     Eu-  rected  and  to  whom  it  has  never  been 

banks,   100  Ky.  591,  38  S.  W.  1068,  36  delivered,  no  matter  how  gross  the  neg- 

L.  R.  A.  711,  60  Am.     St.    Rep.     361;  ligence  of  the  company  may  be,  a  rea- 

Francis  v.  West.  U.  Tel.  Co.,  58  Minn.  scnable  regulation?     In  the  opinion  ot 

252,  59  N.  W.   1078,  25  L.  R.  A.  466,  this   court   it    is    clearly    unreasonable 

49  Am.  St.  Rep.  507 ;   Pac.  Tel.  Co.  v.  and  is  contrary  to  public  policy." 

Underwood,  37  Neb.  315,     55     N.     W.  '"Pac.  Tel.     Co.  v.     Underwood,     37 

1057,  40  Am.  Rep.  490.  Neb.  315,  40  Am.   St.  Rep.  480,  5.-)  N. 

"Vvest.   U.   Tel.   Co.   v.   Longwill.   21  W.  1057. 

Pac.  339.  *»  Johnston   v.   \\est.   U.   Tel.  Co.,   3.3 

"  In  Johnston  v.  West.  U.  Tel.  Co.,  Fed.  362. 
33  Fed.  302.  tho  court  said:  "Is  a  stip- 


376  TELEGRAPH   AXD   TELEPHONE    Co.Nn'AMKS.  [§    38U 

recover  damages,  is  not  bomid  liv  these  stipulations,  nl though  the  val- 
idity in  other  respects  is  recognized.^ ^  In  Texas  these  stipulations 
are  valid  so  long  as  the  time  for  filing  the  claim  is  not  less  than  thirty 
days,®-  but  if  the  time  is  made  any  number  of  days  less  than  thirty, 
they  become  void.^^  In  other  states  these  stipulations  are  held  in- 
valid in  that  they  are  prohibited  by  positive  statutory  provisions.^* 

§  390.     When  limitation  begins  to  run. 

These  limitations,  within  which  claims  must  be  presented  to  the 
company,  begin  to  run  from  the  time  specified  in  the  stipulation. 
They  are  for  the  exclusive  benefit  of  the  company  and  are  in  the  na- 
ture of  conditions  precedent  to  the  bringing  of  a  suit,  and  in  order 
for  the  injured  party  to  take  advantage  of  his  loss,  he  must  comply 
with,  the  terms  of  the  conditions.^ ^  As  they  are  for  the  benefit  of  the 
company,  and  must  be  complied  with  by  the  party  injured,  the  for- 
mer must  also  be  held  to  their  conditions.^"  The  principal  condition 
in  the  stipulation  is,  that  the  claim  must  be  presented  Avithin  a  cer- 
tain fixed  time.  The  question,  then,  which  presents  itself  is,  When 
does  the  limitation  begin  to  run  ?  In  the  old  blank  form,  used  by 
these  companies  for  message  blanks,  the  wording  of  these  stipula- 
tions was  different  from  that  now  in  use.  The  old  form  provided  for 
a  presentation  within  "sixty  days  after  sending  the  message."  Un- 
V  der  this  form  many  decisions  arose,  and  it  was  held  in  all  these  that 
the  limitation  did  not  licgiii  to  run  until  aftci'  the  message  was  ac- 
tually sent;  so,  if  there  was  a  total  failure  to  transmit,  the  limita- 
tion wonld  not  a])])ly.*''^     Under  tlie  present  forms  used  by  these  com- 

^'  West.  U.  Tel.  Co.  v.  :MeKil)ben,  114  ^^ch.    194,  4S   Am.    St.   IJc]).    72^.   ()2    X. 

Ind.  511,  14  K.  E.  894.  W.  451. 

^^Tex.  Kev.  Stat.  1895,  Art.  3379.  «nVest.  I^  Tel.  Co.  v.  Way,  S3  Ala. 

^=West.   U.   Tel.   Co.  v.   Jobe,   6   Tex.  542,  4  So.  849. 

Civ.  App.  403,  25  S.  W.   168,  1036.  »« West.    1.    Td.    (  o.    v.     rnniihiill.    1 

"West.   U.  Tel.   Co.  v.  Eubanks,   100  hid.    .\\>]>.    121:    West.    V.     Tel.    Co.    v. 

Ky.  591,  36  L.  R.  A.  711,  60  Am.   St.  ^..|.s^.  J  IS   Ind.  248.  20  X.  K.  222,  2  L. 

Kep.   361;   Donio  v.  West.  U.  Tel.  Co.,  K.  A.  224ii. 

107,  Ky.  527,  92  Am.     St.     Rep.     371;  "' Soo   note   SO    for     roforonce     cases. 

Pac.    Tel.    Co.    v.    Underwood,    37    Xeb.  Sec.  also.  Slicirill  v.  WCst.   l'.  WA.  Co.. 

315,   .55  X.-  W.    10.57.  40  Am.   St.   l^-]'-  '•"■'   ^'-  <^''"  ■   '•-"■   '  ^  '^^   '''•  •'^• 
490;    West.    U.    Tel.    Co.    v.    Kemp.    44 


^    391]  COMMOX   LAW  LIABILITIES.  oit 

panics,  it  i>  iirn\i(lcd  tliat  the  company  will  not  Ix-  liable  for  damages 
or  for  statiitnry  penalties  in  any  case  where  the  claim  is  not  pre- 
sented ill  writiii£i-  within  sixty  days  after  the  message  is  filed  with 
the  comically  for  transmission.  There  have  l)een  but  few  decisions 
on  these  new  forms  with  respect  to  the  time  when  the  limitation  be- 
gins to  run.  In  these  cases  it  was  held  that  the  decisions  under  the 
old  form  were  applicable  under  the  new  on  the  ground  that  these 
companies  conld  not  avail  themselves  of  any  provision  in  a  contract 
which  they  faih-d  to  aceept.^^  We  think  this  is  the  proper  construc- 
tion to  be  plne('<l  on  these  stipulations. 

§  391.     Same  continued— delay  in  receiving  messages — does  not 
modify  stipulation. 

The  fact  that  the  addressee  docs  not  receive  the  message  for  some 
time  after  it  has  been  transmitted  does  not  modify  the  stipulation 
by  giving  the  injured  party  more  time,  although  the  company  has 
negligently  delayed  the  message;  provided,  however,  he  has  a  rea- 
sonable time  to  present  the  claim  after  his  knowledge  of  the  error. *° 
And  the  mere  fact  that  the  exact  amount  of  the  damage  suifered  by 
the  addressee  cannot  be  ascertaind  Avithin  sixty  days,  is  no  excuse 
for  his  failure  to  present  his  claim  within  that  time.^"  He  should 
present  his  claim  within  the  specified  time ;  and,  if  he  should  learn 
after  the  expiration  of  the  time  of  other  damages,  the  claim  may  be 
so  amended  as  to  include  these  latter  damages.  The  claim  should 
be  presented  within  the  limitation,  if  it  should  be  reasonable  in  the 
particular  instance,  and  if  the  court  should  instruct  the  jury  that  the 
time  does  not  begin  to  run  until  after  the  error  has  been  learned,  or 
the  breach  of  the  company's  duty  has  been  known  by  the  injured 
party,  it  will  be  an  error.^^  If  the  complaint  shows  that  the  message 
was  never  delivered,  the  action  having  been  instituted  by  the  receiver, 
it  is  not  demurrable  merely  because  it  fails  to  allege  that  the  claim 
was  made  within  the  limitation. ^- 

"MVest.  U.  Tel.  Co.  v.  [Micliaelson.  !)4  "» Plainer    v.    West.     l'.    T.-l.    Co..    04 

Ga.  43G,  21   So.   1G9.  Tenn.  442. 

8«Heiman  v.   West.   U.  Tel.   Co.,     57  "West.  U.  Tel.  Co.  v.  Phillips  2  Tex. 

Wis.  562,  IG  N.  W.  32;   Massengale  v.  Civ.  App.  G08.  21   S.  W.  ()38. 

West.   U.   Tel.   Co..    17   Mo.   App.   258:  "- Slierrill   v.   West.    l".    IVl.   Co..    10-' 

West.   U.   Tel.    Co.   v.    Phillips,   2   Tex.  X.  C.  527,  14  S.  E.  94. 
Cjv.  App.  COS,  21   K.   \V.  G3S. 


378  TELEGRAPH  AjS'D  TELEPHONE   COMPANIES.  ["§    3'92 

§  392.     Same  continued — unaware  of  wrong — not  binding. 

While  the  foregoing  rules  are  generally  accepted,  yet  there  are 
exceptions,  as  where  the  time  is  not  reasonable.  In  order  for  any 
rule  to  be  binding,  it  must  be  reasonable.  Cessanie  ratione,  et  ipse  lex. 
The  length  of  time  given  in  these  stipulations  is  presumed  to  be  rea- 
sonably long  to  give  the  injured  party  ample  time  to  file  his 
claim  with  the  company;  but  should  it  appear  that  he  did  not  be- 
come aware  of  the  wrong  until  after  the  expiration  of  the  limitation, 
and  this  was  no  fault  on  his  part ;  or,  if  he  does  not  have  a  reasonable 
time  to  file  the  claim,  after  he  becomes  aware  of  the  company's  breach 
of  duty;  or,  if  for  any  reason  he  is  unavoidably  prevented  from  pre- 
senting his  claim  before  the  expiration  of  the  limitation,  but  does  so 
as  soon  thereafter  as  it  is  in  his  power,  the  stipulation  is  not  bind- 
ing.^^  So,  it  will  be  seen  that  each  particular  case  must  be  consid- 
ered with  respect  to  its  own  surrounding  circumstances.  In  many 
instances,  the  addressee  is  the  only  interested  party  to  the  business 
transaction,  about  and  for  which  a  message  is  sent,  the  sender's  duty 
and  interest  having  been  completed  at  the  filing  of  the  message  for 
transmission.  In  these  cases  the  message  may  not  be  sent  at  all ;  or, 
it  may  be  negligently  delayed  in  its  delivery  by  the  company:  of 
which  facts,  the  addressee  may  have  no  knowledge  whatever  until 
after  the  expiration  of  the  limitation.  Under  such  circumstances 
the  addressee  should  surely  not  be  bound. 

§  393.     Compliance  with  stipulation — what  constitutes. 

Having  considered  the  limitation  within  which  all  claims  for 
damages  against  telegraph  companies  must  be  presented,  and  the  rea- 
sonableness of  the  same,  we  shall  now  set  out  something  of  what  is 
necessary  to  constitute  a  sufficient  compliance  with  said  stipulations. 
First,  the  claim  should  be  presented  in  writing ;  second,  it  should  set 
forth  in  unmistakable  terms  the  nature  of  the  demand;  and  third, 
it  should  be  presented  to  a  proper  agent  of  the  company.  And  first, 
the  presentation  of  the  claim  must  be  in  writing.  The  object  in 
requiring  the  claim  to  be  in  writing,  further  than  for  the  reason  that 

"»West.   U.   Tel.   Co.   V.   Reynolds,   77 
Va.   173,  4(5  Am.  Kep.   715. 


§    394]  COMMON  LAW  LIABILITIES.  379 

the  stipulations  expressly  require  this  is,  that  the  officers  of  the  com- 
pany, who  liave  the  power  to  act  on  such  claims,  may  have  the  na- 
ture and  extent  of  the  claimant's  demand  directly.  The  claim  agents 
would  not  have  the  opportunity  to  give  the  notices  proper  consider- 
ation if  they  were  given  orally  through  the  operator ;  and  if  the  na- 
ture of  the  claim  was  in  dispute,  in  an  action  arising  out  of  the  claim, 
the  written  notice  could,  and  should,  be  introduced  to  show  the  true 
nature  of  the  demand.  Another  reason  for  holding  that  these  claims 
should  be  in  writing  is,  that,  in  the  great  amount  of  business  of  these 
companies,  an  oral  notice  would  not  as  likely  reach  the  proper  officers 
of  the  company,  where  it  should  have  proper  consideration. 

§  394.     Same  continued — waiver  of  written  claim. 

While  these  companies  may  require  the  notice  of  the  claim  to  be 
in  writing,  yet  they  may  waive  this  right.  Notices  are  generally 
presented  to  the  local  agents,  who  are  impliedly  authorized  to  trans- 
mit all  the  business  connected  with  the  messages  received  by  them ; 
and,  in  the  capacity  of  an  agent,  they  may  have  the  power  to  waive 
written  notices  of  claims  for  damages.^^  Thus,  where  the  plaintiff 
presented  an  oral  claim  within  sixty  days,  whereupon  the  company 
entered  into  a  correspondence  with  him  and  made  an  offer  in  settle- 
ment in  sixty  days ;  the  company's  right  to  insist  on  a  written  notice 
was  waived. ^^  In  a  case  where  an  agent,  in  stead  of  objecting  to  tlie 
oral  complaint,  requests  time  for  investigating  the  merits  of  the 
claim,  and  after  investigating,  the  company  refuses  to  pay  anything 
not  upon  the  grounds  of  the  insufficiency  of  the  demand  but  upon 
the  non-liability  of  the  company ;  it  was  held  that  ^^  this  constituted 
a  waiver  of  the  right  to  demand  a  written  notice.  But  the  promise 
of  an  agent,  when  the  complaint  is  made  orally,  to  look  into  the  mat- 
ter, is  not  a  waiver  of  the  right.^"      And  where  the  complaint  was 

"West.  U.  Tel.   Co.  v.  Stratemier.  6  "MVest.  U.  Tel.  Co.  v.  Stratemeier,  6 

Ind.   App.    125,  32  N.   E.   871;   Hill  v.  Ind.  App.   125,  32  N.  E.  871. 

West.  U.   Tel.   Co.,   85  Ga.  425,   11    S.  »«Hill  v.  West.  U.   Tel.  Co.,  85  Ga. 

E.  874,  21  Am.   St.  Rep.  1G6;  Hays  v.  425,  11  S.  E.  874,  21  Am.  St.  Eep.  166; 

West.  U.  Tel.   Co.,  70  S.  C.   16,  48  S.  West.  U.  Tel.   Co.  v.   Yopst,   11   N.  E. 

E.  GOS,  106  Am.  St.  Rep.  731,  67  L.  R.  16. 

A.   81.  "•  Masscii<,'ale    v.    \\Vst.    U.    Tel.    Co., 

17  ;Mo.  Apj).  2.t7. 


3S0  TELEGKAPII    AXB    TELKPHONK    COM  PAX  IKS.  [<^     394 

made  to  a  telegraph  o]ierator,  avIio  (■x})n'sse(I  llio  opinion  that  there 
was  no  liability,  he  having  no  authoritv  to  represent  the  company 
in  such  matters,  it  was  held  that  there  was  no  waiver.^^  If  a  message 
is  written  and  paid  for  as  a  night  message,  which  contains  a  stipula- 
tion to  the  eifect  that  all  claims  arising  out  of  the  improper  trans- 
mission shall  he  presented  in  thirty  days,  and  it  is  orally  agreed  that 
the  message  shall  not  be  transmitted  until  the  next  morning,  this  does 
not  of  itself  waive  the  right  to  demand  the  claim  in  writing,  although 
the  other  part  of  the  contract  may  be  changed.^'' 

§  395.     Same  continued — nature  of  the  claim. 

The  claim  should  set  out  fairly  the  nature  and  extent  of  the  claim- 
ant's demand.  The  object  of  this  requirement  is  to  give  the  company 
cognizance  of  facts  creating  the  liability,  in  order  that  it  may  use 
these  for  investigating  the  cause  of  the  loss  or  injury.  It  is  impos- 
sible for  these  companies  to  keep  up  with  all  the  mistakes  of  their 
employees,  and  the  injuries  arising  therefrom ;  and,  while  they  may 
be  clearly  liable  for  claims  presented — and  for  which  they  would 
readily,  without  suit,  indemnify  the  injured  party — ^yet,  if  they  have 
no  facts  on  which  to  base  an  investigation  in  order  to  determine 
whether  they  are  liable,  they  would,  very  probably,  be  heavily  taxed 
with  an  expensive  litigation.  So,  if  the  plaintiff  should  have  good 
grounds  to  recover  damages,  he  should  impart  these  facts  to  the  com- 
pany, in  order  to  avoid  litigation ;  and  on  these  only  could  he  re- 
cover. ^^^  He  should  also  state  the  extent  of  the  injury;  however,  he 
will  not  be  limited  to  the  amount  set  forth  in  his  claim,  for,  as  said 
before,  the  extent  of  the  damages  may  not  be  known  until  after  the 
claim  shall  have  been  presented.  In  a  case  on  this  point,  a  claim 
was  presented  by  a  sender,  classifying  the  damages  as  "fifty  dollars 
actual  damages  and  five  thousand  dollars  exemplary  damages."  At 
the  trial,  the  jury  returned  a  verdict  for  five  hundred  dollars  actual 
damages  alone.  It  was  held,  that  the  plaintiff  was  not  prejudiced  by 
his  classification,  so  the  verdict  was  allowed  to  stand.      The  court, 

«West.  U.  Tel.  Co.  v.  IJains,  63  Tex.  "'nVe.st.    U.    Tel.    Co.    v.   Murray,   20 

27.  Tex.   Civ.  App.  207,  G8     S.     W.     549; 

"West.  U.  Tel.  Co.  v.  Culberson,  70  Swain   v.    West.    U.   Tel.    Co.,    12    Tex. 

Tex.  65,  15  S.  W.  219.  Civ.  App.  .'585,  .34  S.  W.  783. 


^    396]  COMMOX   LAW    LIAKILITIKS.  oSl 

said:  "•Tlu-  daiin  \v:is  fur  tivc  tli<.u.<an.l  and  fifty  dollars  in  the  ag- 
gregate, and  served  in  all  respects  to  give  the  defendant  the  informa- 
tion stipulated  for."  ^"^ 

§  396.     Must  be  presented  to  proper  officer. 

As  to  what  will  amount  to  a  sufficient  presentation  of  a  claim  must 
depend  somewhat  upon  the  circumstances  of  the  case.  A  representa- 
tion to  the  resident  agent  of  the  company,  who  made  the  contract  to 
transmit  the  message,  was  held  a  sufficient  presentation,^"-  although 
such  aiicnt  liad  no  authority  to  settle  the  claim.  The  manager  of 
the  com]iany's  office,  at  the  place  from  or  to  which  a  message  is  sent, 
is  a  proper  party  to  whom  a  presentation  may  Ije  made.^"^  Where  the 
plaintiff  informed  the  operator  of  a  mistake  made  in  sending  the  mes- 
sage and  was  referred  by  him  to  the  main  office,  where  a  clerk  told 
him  the  manager  was  busy,  but  took  down  his  complaint  in  writing 
and  handed  it  to  a  person  in  another  room  wdiom  he  introduced  as 
the  attorney  of  the  company,  which  attorney  promised  to  investigate 
the  matter,  and,  afterwards,  in  reply  to  plaintiff's  inquiry,  wrote  a 
letter  rejecting  the  claim,  using  paper  and  envelope  with  printed 
headings  representing  him  to  be  the  attorney  of  the  company — this 
was  held  a  proper  presentation.^*'^  The  party  on  whom  the  notice  is 
served  must  have  some  authority  to  accept  such  for  the  company,  and 
if  the  plaintiff  has  any  information  that  a  certain  employee  of  the 
company  has  no  authority  to  accept  claims,  then  he  loses  his  rights 
by  serving  it  on  such  person.  Thus,  where  a  written  statement  of 
plaintiff's  claim  was  handed  by  his  agent  to  a  receiving  clerk  of  the 
company,  who  after  a  perusal  of  it,  handed  it  back,  saying  he  had 
nothing  to  do  wdth  it,  and  directing  him  to  the  general  officers  of  the 
company  in  another  part  of  the  building,  but  nothing  more  was  done 
until  after  the  time  had  elapsed,  it  was  held  that  there  had  not  been  a 
compliance  with  tlic  con.lition,  so  the  plaintiff's  suit  was  defeated  on 

""Manier   v.    West.   U.   Tel.    Co..    94  425,  11  S.  E.  874,  21  Am.  St.  Rep.  166; 

Tenn.  442,  29  S.  W.  732;  ^Yest.  U.  Tel.  West.  U.  Tel.  Co.  v.  Yopst,   11  N.  E. 

Co.  V.  Murray,  29  Tex.  Civ.  App.  207,  10;   Hays  v.  West.  U.  Tel.  Co.,  70  S. 

68  S.  W.  549.  Car.  16,  48  S.  E.  608,  100  Am.  St.  Rep. 

■<«West.  U.  Tel.  Co.  v.  lUanohaid.  08  731,  67  L.  R.  A.  481. 

Ga.  299.  ""Bennett  v.  ^^Vst.  I  .    Tel.  Co..  2  X. 

"^Hill   V.   West.   U.  Tel.   Co.,  85   Ga.  y.  Supp.  305. 


382  TELEGRAPH  AND  TELEPHONE  COMPANIES.        [§  396 


that  ground. ^"^^  And  so,  it  has  been  held  that  a  notice  of  claim  de- 
livered, to  a  messenger  boy,  to  be  by  him  delivered  to  the  proper  agent 
of  the  company,  is  not  sufficient  compliance  with  the  stipulation.^^® 

§  397.     Commencement  of  suit — whether  sufficient  notice. 

It  has  been  held  by  many  courts  that  the  commencement  of  a  suit, 
within  the  limitation,  against  these  companies  for  damages,  was  not 
a  sufficient  compliance  with  these  stipulations,  requiring  claims  to 
be  presented  within  a  certain  fixed  time.^""  The  ground  on  which 
these  courts  based  their  decisions  is  that  these  stipulations  are  condi- 
tions precedent  and  must  be  filed  before  the  commencement  of  a 
suit;  and  until  they  are  complied  with,  the  injured  party  has  no 
cause  of  action. ^^^  As  was  said  on  the  subject:  "The  company  was 
entitled,  unless  there  was  a  waiver,  to  a  written  claim,  before  the 
action  was  instituted,  in  order  to  enable  it  to  ascertain  the  facts,  and 
determine  whether  it  would  pay  to  restrict  the  claim  .  .  .  for  a 
defendant  is  not  to  be  harassed  by  an  action  until  after  the  stipu- 
lated claim  has  been  presented  or  its  presentation  waived  ?"  ^"^  Un- 
der these  rulings  it  was  held  that  the  stipulations  would  not  be  suffi- 
ciently coniplied  with  if  a  written  claim  was  presented  after  the  com- 
mencement of  the  suit  and  before  the  expiration  of  the  limitation, 
but  that  this  written  notice  would  be  a  good  ground  on  which  to  base 
another  suit.^^*^  In  those  jurisdictions  in  which  these  decisions  were 
rendered,  the  company  could  waive  this  condition  and  accept  the  ser- 
vice of  a  suit  as  a  sufficient  notice. 

§  398.     Contrary  holding — better  view. 

There  are  other  courts  which  hold  that  the  commencement  of  a 
suit,  before  the  expiration  of  a  limitation,  is  a  sufficient  presentation 

'"■'Young  V.  West.  U.  Tel.  Co.,  65  N.  v.  Hays,  63  S.  W.  171,  67  S.  W.  1072. 

Y.  163.  "'Id. 

»»«West.   U.   Tel.    Co.   v.    Terrell,    10  '»» West.  U.  Tel.  Co.  v.  Yopst,  11  N. 

Tex.  Civ.  App.  60,  30  S.  W.  70.  E.   16,  Aff'g  118     Ind.     248,  20  N.  E. 

'»'  West.  U.  Tel.  Co.  v.  McKinney,  5  222,  3  L.  R.  A.  224n. 

Tox.  L.  Rev.  173;  West.  U.  Tel.  Co.  v.  ""West.  U.  Tel.  Co.  v.  McKinney,  5 

Yopst,  11  N.  E.  16;  West.  U.  Tel.  Co.  Tex.  L.  Rev.  173. 


§    399]  COMMON  LA\V   LIABILITIES,  383 

of  claim/ ^^  and  we  are  inclined  to  think  that  this  is  the  better  view 
to  take  of  the  subject.  The  object,  as  said  before,  in  presenting  a 
written  notice  of  the  claim  to  these  companies  is  to  enable  them  to 
ascertain  whether  they  are  liable  for  the  damages.  It  is  true,  that 
it  would  be  better  to  give  a  written  notice  before  the  commencement 
of  a  suit,  so  that  the  company  might  be  given  an  opportunity  to  set- 
tle without  expense.  The  main  point  is  that  the  company  is  enti- 
tled to  notice  of  plaintiff's  claim,  and  either  the  filing  of  the  claim 
or  the  bringing  of  suit  within  the  limitation  specified  in  the  contract 
accomplishes  this.  On  the  other  hand,  it  seems  to  us  that  it  could 
be  better  informed  of  these  facts  by  a  suit,  especially  where  the  rule 
of  procedure  is  that  the  filing  of  a  declaration  is  the  first  step  to  the 
bringing  of  a  suit,  since  it  is  very  evident  that  the  facts  on  which  the 
liability  arises  are  much  more  fully  stated  in  the  latter  way,  thereby 
giving  the  company  a  better  opportunity  to  make  a  full  investigation 
of  the  complaint.  We  do  not  wish  to  be  understood  as  saying  that 
the  commencement  of  a  suit  is  always  a  better  way  to  settle  these  mat- 
ters, but  that  the  bringing  of  a  suit  is  equivalent  to  a  presentation  of 
a  notice  of  claim  for  damages. 

§  399.     Limiting  liability  to  specific  amount. 

Telegraph  companies  have  attempted  to  limit  their  liabilities  for 
sending  night  messages  by  reducing  the  charges  for  transmission.  This 
is  done  by  stipulating  in  the  blank  forms  that  they  will  not,  for  the 
consideration  of  said  reduction,  be  liable  beyond  a  certain  amount. 
It  has  been  held,  with  few  exceptions,^^"  that  those  stipulations  were 
unreasonable,  and  so  far  as  they  sought  to  limit  the  liability  of  the 

'"  West.  U.  Tel.  Co.  v.  Henderson,  89  "\V.   63 ;    West.   U.   Tel.   Co.  v.   Karr,   5 

Ala.   510,  7   So.  419,   18  Am.  St.  Rep.  Tex.  Civ.  App.  60,  24  S.  W.  302;  West. 

148;   East  Tennessee,  etc.,  R.     Co.     v.  \j.  Tel.  Co.  v.  Crawford,  75  S.  W.  843. 

Bayless,  74  Ala.   150;   Bryan  v.  West.  "*  Aiken  v.   West.   U.  Tel.   Co.,  5   S. 

U.  Tel.   Co.,   133  N.  C.   603,  45  S.   E.  C.  358;  Schwartz  v.  Atlantic,  etc.,  Tel. 

938;    West.  U.  Tel.   Co.   v.  Mellon,  96  Co.,  18  Hun     (N.  Y.)    157;   Bernett  v. 

Tenn.  78;  West.  U.  Tel.  Co.  v.  Cooper,  West.  U.  Tel.  Co.,  2  N.  Y.  Supp.  365; 

29  Tex.  Civ.  App.  591,  69  S.  W.  427;  Jones   v.   West.    U.    Tel.    Co.,    18    Fed. 

West.  U.  Tel.  Co.  v.  Finer,  9  Tex.  Civ.  717;  Clement  v.  West.  U.  Tel.  Co.,  137 

App.  152,  29   S.  W.     66;     Fhillips     v.  Mass.   463. 
West.  U.  Tel.  Co.,  95  Tex.   638,  69  S. 


384  TELEGRAPH   AXD   TELEPHONE    COMPANIES.  [^    399 

company  for  the  consequences  of  its  own  negligence,  was  contrary  to 
public  policy  and  could  not  be  enforced.  These  companies  have  a 
perfect  right  to  make  all  rules  and  regulations,  and  by  these  they  may 
limit,  to  a  certain  extent,  their  common-law  liabilities;  however,  these 
rales  must,  under  all  circumstances,  be  reasonable  and  consistent  with 
public  polic}-.  It  might  be  possible,  that  they,  as  contracts  between 
individuals  or  between  the  company  and  an  individual,  would  be  con- 
sidered reasonable ;  but  the  interest  the  public  has  in  these  institu- 
tions, and  the  effect  an  enforcment  of  these  would  have  been  on  the 
jDublic,  would  make  them  against  public  policy  and,  therefore,  void; 
for,  where  the  interest  of  a  few  is  conflicting  with  the  interest  of  the 
public,  the  former  must  give  way  to  the  latter.  To  permit  these  com- 
panies, therefore,  to  impose  these  stipulations,  would  open  to  them 
an  opportunity  to  exercise  fraud  upon  the  public  or  give  them  a 
chance  to  become  negligent.  The  amount  of  damages  to  which  they 
would  be  liable  would  be  so  trifling  that,  in  many  instances,  they 
would  rather  pay  this  than  to  be  bothered  with  the  duties  assumed.  As 
was  said :  "The  operator  may,  from  stupidness  or  haste  to  close 
for  the  night,  prefer  to  pay  back  tlie  trifle  paid,  and  leave  the  mes- 
sage unsent.  Or,  a  message  may  have  been  carelessly,  or  even  wan- 
tonly, thrown  into  the  waste  basket,  and  never  sent,  or  if  sent  it  may 
have  been  treated  in  the  same  manner  at  the  office  of  reception,  and 
never  delivered  to  a  carrier,  or  if  so  delivered,  it  may  have  been 
thrown  aside  or  destroyed  by  the  carrier  to  save  himself  labor  or  trou- 
ble. And  the  sender,  under  this  rule,  must  be  debarred  from  all 
remedy  beyond  a  repayment  of  the  few  cents  paid."  ^^^  Another 
reason  why  they  are  not  reasonable  and  therefore  enforcible  is,  that, 
as  said  at  another  place,  the  sender  is  not  put  on  equal  footing  with 
the  company  if  the  stipulation  is  considered  as  a  contract.  In  other 
words,  it  would  be  in  the  nature  of  a  contract  made  under  duress. 
i\jid  it  cannot  be  said  that  a  reduction  of  the  charges  for  sending 
would  increase  the  duty  of  the  company  to  use  more  care  in  the  trans- 
mission of  messages.  ^^^ 

"^Ti'ue  V.  International  Tel.   Co.,  60  "^  Gray   on  Telegraph,   §51. 

Me.  9,  11  Am.  Rep.  IGl. 


^    402]  COMMON  LAW   LIABILITIES.  385 

§  400.     Same  continued — nature  of — liquidated  damages. 

These  stipulations,  in  this  respect,  contain  clauses  to  this  effect: 
''In  consideration  of  the  reduced  rate  for  which  this  message  is  sent, 
the  company  shall  not  he  liable  beyond  the  amount  paid  for  transmis- 
sion," or,  ''to  ten  times  the  amount  paid  for  transmission,"  or,  "to 
lifty  times  such  amount  where  the  message  is  repeated,"  or  "to  twenty 
])er  cent  f»f  the  amount  of  damage ;"  all  of  such  stipulations  have  been 
lic'ld  uiii'casonable.  In  some  jurisdictions,  however,  it  has  been  held 
that  it  was  an  agreement  made  between  the  parties  upon  a  certain 
sum,  as  liquidated  dainages.^^^  Judge  Bonner  said,  while  discuss- 
ing this  point:  ''Wo  fail  to  perceive  on  principle,  why,  in  such 
cases,  the  parties  may  not,  as  they  did  here,  agi'ce  upon  a  sum  cer- 
tain in  the  nature  of  liquidated  damages  for  an  error  or  delay  aris- 
ing from  a  cause  other  than  misconduct,  fraud  or  the  want  of  proper 
care."^'"= 

§  401.     Same  continued — insured — same  rule. 

In  other  blanks  furnished  by  these  companies,  there  have  been  stip- 
ulations to  the  effect  that  they  would  not  be  liable  for  damages  beyond 
a  certain  amount,  unless  the  message  was  ordered  to  be  repeated,  or, 
unless  an  extra  charge  was  given,  in  consideration  of  which  it  would 
insure  a  safe  and  correct  transmission  of  the  message. ^^'''  These  stip- 
ulations have  also  been  held  unreasonable  and  void  for  the  reasons 
as  given  above. -^^^ 

§  402.     Night  messages — time  to  be  delivered. 

Telegraph  companies  generally  have  two  different  blank  forms  to 
be  furnished  to  their  patrons,  and  these  are  to  be  respectively  used 
at  the  time  at  which  a])pli('ation  is  made  to  the  company  for  services. 
For  instance,  they  have  a  day  message  blank  and  a  night  message 
l)lank.      On  these  two  forms  are  to  be  found  stipulations  differing 

"'•West.  U.  Tol.  Co.  V.  Xoill.  Tu   Tex.  ness  v.  West.  U.  Tel.  Co..  73  Iowa  190. 

289.  44  Am.  rvcp.  580.  34   N.   W.   811,   5   Am.    St.   Rep.   672: 

"Md.  West.    U.    Tel.    Co.    v.    Harris.    19    111. 

'"Brown   v.    Postal   Tel.    Cable      Co.,  App.    347;    American    U.    Tol.    Co.    v. 

Ill   iSr.   C.    187,   16   S.   E.   179,  32  Am.  Dougherty,   SO   Ala.    191. 

St.  Rep.   793,   17  L.  R.  A.  648;   Hark-  "'Id. 
T.  &  T.— 25 


386  TELEGRAPH   AND  TELEPHONE   COMPAKIES.  [<§.    402 

from  each  other  in  some  respect.  As  a  general  rule,  the  business  of 
these  companies  at  night  is  not  so  pressing  as  during  the  day,  and 
for  this  reason  they  have  adopted  rules  which  are  inscribed  on  these 
forms,  to  the  affect  that  they  will  transmit  messages  during  the  night 
at  a  reduced  rate,  to  be  delivered  at  or  by  a  certain  time  on  the  fol- 
lowing morning.  These  stipulations  do  not  exonerate  the  companies 
for  any  negligence  in  the  transmission,  or  exempt  them  from  liabil- 
ities arising  from  the  want  of  due  diligence  in  a  prompt  delivery, 
but  they  must  exercise  the  same  diligence  in  delivering  these  mes- 
sages on  the  following  morning  as  if  the  message  had  been  sent  as  a 
day  message.  It  has  been  held,  however,  that  a  stipulation  to  the 
effect  that,  in  consideration  of  reduced  rates,  the  company's  duty  to 
deliver  shall  be  deemed  fulfilled  by  a  delivery  by  noon  of  the  succeed- 
ing day,  is  reasonable  and  valid.  ^^^  This  latter  stipulation  may  be, 
and  is,  waived  by  a  parol  promise  to  the  operator  to  have  the  mes- 
sage transmitted  and  delivered  sooner.  ^^" 

§  403.     Unavoidable  interruption — special  contract. 

As  elsewhere  stated,  telegraph  companies  are  often  interfered  with 
in  the  transmission  of  messages  by  climatic  changes ;  in  fact,  this  is 
the  most  serious  difiiculty  with  which  they  have  to  contend.  When 
the  means  by  which  news  could  be  transmitted  by  electricity  were 
first  brought  into  use,  and  for  sometime  thereafter,  this  difficulty  was 
almost  beyond  the  control  of  these  companies ;  but  after  many  years 
of  close  study  by  scientists  on  this  subject,  these  interferences  have, 
to  a  very  great  extent,  been  overcome,  yet  they  are  still  often  pre- 
vented from  making  a  correct  transmission  of  messages  on  account  of 
these  interferences.  ]^ot  only  is  their  business  interfered  with  by 
these  climatic  changes,  but  often  they  are  interrupted  in  their  busi- 
ness by  strikes.  In  order  to  guard  against  these  unavoidable  inter- 
ferences, and  to  relieve  themselves  from  a  limited  amount  of  liability 
or  any  liability  at  all,  for  failure  or  delay  in  the  transmission  of 

''*West.  U.  Tel.  Co.  v.  McCoy,  31  S.  427.    Compare  Hibbard     v.     West.     U. 

W.    (Tex.)    210;   West.  U.  Tel.   Co.   v.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775. 

Van  Cleave,  107  Ky.  4G4,  54  S.  W.  827,  '=*West.    U.   Tel.    Co.    v.    Bruner,    10 

92   Am.    St.    Rep.    366;    West.    U.    Tel.  S.  W.  149. 
Co.  V.  Johnston,  107  Ky.  631,  55  S.  W. 


^  404]  cuM.Mox  i.A\v  j.iAi'.ii.i  I  U.S.  o"^! 

messages  caused  by  such  interferences,  they  have  been  forced  to  make 
special  contracts  with  the  sender  of  messages,  whereby  it  is  agreed 
that  the  former  will  not  be  liable  for  losses  arising  therefrom ;  and 
it  has  been  held  that  these  contracts  were  valid  and  enforcible,  both 
as  to  interferences  caused  by  the  changes  of  climate,^^^  and  also  by 
strikes.  ^^-  But  should  the  operator  of  the  company  know  at  the 
time  the  message  was  received  that  the  wires  of  the  company  were 
being  subjected  to  such  interferences,  and  knew  that  for  this  reason 
the  message  would  necessarily  be  delayed,  it  is  his  duty  to  notify  the 
sender  of  such  fact ;  and,  on  a  failure  so  to  do,  the  contract  cannot 
be  used  as  a  defense  by  the  company.  ^^^  iTeither  could  the  company 
use  this  stipulation  as  a  defense,  when  the  delay  was  caused  by  tlie 
wire  being  used  to  send  out  train  orders. ^-^ 

§  404.     Over  connecting  lines — stipulation — exemptions. 

A  stipulation  to  this  effect  is  found  on  the  blanks  of  these  com- 
panies :  That  the  company  is  made  the  agent  of  the  sender,  without 
liability,  to  forward  any  message  over  the  lines  of  any  other  com- 
pany when  necessary  to  reach  its  destination.  As  will  be  seen,  by 
a  close  observance  of  this  stipulation  the  company  attempts  to  exempt 
itself  from  liabilities  both  over  its  owm  line  and  that  of  the  connect- 
ing company,  in  that  it  represents  itself  as  agent  for  the  sender.  As 
has  been  seen,  a  telegraph  company  may  stipulate  against  losses 
caused  on  its  own  lines,  when  the  same  has  not  been  brought  about 
by  any  negligence  on  its  OAvn  part,  but  this  is  as  far  as  it  can  go  hy 
stipulation,  and  any  scheme  by  which  it  attempts  to  escape  this  liabil- 
ity— as  tliat  by  agency — cannot  be  upheld;  and  so  far,  in  this  re- 
spect, tlie  stipuhition  is  void.^-^      These  companies  may.  however,  by 

'-' Sweotlaiul    V.    Illinois,      etc.,      Tel.  '-=  Marvin  v.  West.  U.  Tel.     Co.,     15 

Co.,     27     Iowa     433,      I      Am.      Rep.  Cliic.  Leg.  X.  416. 

285;      West.     U.     Tel.     Co.,     v.     Gra-  '=''West.  U.  Tel.  Co.  v.   Biige-Forbes 

ham,     1      Colo.      237,      n      Am.      Rep.  Co..  29  Tex.  Civ.  App.  52fi:  Pac.  Postal 

136;    White   v.    West.    U.    Tel.    Co.    14  Tel.    Cable   Go.   v.    Fleischner.   dei    Fed. 

Fed.   710:    Riley  v.   West.   U.   Tel.   Co.  809,  20  U.  S.  227;  West.  U.  Tel.  Co.  v. 

6  Misc.   (X.  Y.)  221;  West.  U.  Tel.  Co.  Bierhans,  12  Ind.  App.  17. 

V.   Cohen,    73    Ga.    522;    West.   U.   Tel.  "*  See  note  121  for  reference  cases. 

Co.  V.  Stiles,  35  S.  W.  76.  '=MTest.    V.    Tel.    Co.    v.    Seals,    45 

S.  W.  004. 


388  TELEGRAPH   AXD    TELEPHONE    COMPANIES.  [<§    404 

contract,  become  tlie  agent  of  the  sender  with  respect  to  the  connect- 
ing lines;  and  it  may,  therefore,  stipulate  against  any  losses  caused 
by  delays  or  even  a  failure  to  transmit  over  the  connecting  line,  and. 
this,  too,  notwithstanding  the  fact  that  this  was  caused  by  the  latter's 
negligence.^-*'  The  initial  company  has  nothing  to  do  with  the  oper- 
ation or  management  of  the  connecting  line ;  so,  to  hold  it  liable  for 
any  losses  caused  over  this  latter  line — and  against  which  it  has  stip- 
ulated— would  be  unreasonable  and  therefore  void. 

§  405.     Stipulation  against  cipher  messages — valid. 

There  is  a  conflict  of  opinion  as  to  whether  telegraph  companies 
can  contract  against  errors  or  delays  made  in  the  transmission  of 
cipher,  or  otherwise  obscure  messages,  where  the  same  has  been  as- 
sented to  by  the  sender.  Some  of  the  courts  hold  that  the  duty  of 
the  company  to  send  correctly  messages  which  are  written  in  cipher 
is  the  same  as  that  imposed  on  them  to  transmit  messages  which  are 
fully  written  out  and  clearly  understood  by  the  operator.  They  can- 
not contract  against  losses  caused  by  their  own  negligence  in  trans- 
mitting messages  which  are  clearly  understood  by  the  operator;  and 
these  courts  hold  that  they  cannot  make  such  a  contract  even  though 
it  be  in  cipher. •^-'^  Judge  Guffy  in  rendering  a  decision  on  this  point, 
said :  "It  is  often  of  the  utmost  importance  to  the  sender  or  receiver 
of  messages  that  the  same  should  be  in  cipher  or  obscure,  because  if 
sent  in  plain  language  the  contents  would  often  become  known  and 
the  object  in  view  defeated  ;  hence,  public  policy  forbids  that  appel- 
lant should  by  any  contract  exempt  itself  from  the  damages  resulting 
from  its  negligence  in  transmitting  such  messages."  ^^^ 

§  406.     Same  continued — contrary  view. 

While  the  above  is  the  holding  of  a  goodly  number  of  decisions, 
based  on  apparently  plausible  reasonings,  yet  the  weight  of  author- 

"» See  "Connecting  Lines."  v.  Blancliard,  68  Ga.  299,  49  Am.  Rep. 

'^West.  U.  Tel.  Co.  v.  Eubanks,  100  480;   West.  U.  Tel.   Co.  v.  Fatman,  73 

Ky.   591,  38   S.  W.   1068,   36   L.  R.   A.  Ca.   285,   54   Am.   Rop.   877 :    West.   U. 

711,   66  Am.   St.  Rep.  361;   Dougherty  Tel.   Co.   v.   Reynolds,   77    Va.    173,   40 

V.   American   U.  Tel.  Co.,  75  Ala.   168  Am.  Rep.  715. 

51  Am.  Rep.  435;  West.  U.  Tel.  Co.  v.  "*West.  U.  Tel.  Co.  v.  Eubanks,  100 

Way,  83  Ala.  542,  4  So.  844;  West.  U.  Ky.   591,   38   S.   W.    1068,   06   Am.   St. 

Tel.  Co.  V.  Hyer,  22  Fla.  637,  1  So.  129,  Rep.  308,  30  L.  R.  A.  711. 
1  Am.  St.  Rep.  222;  ^^'est.  U.  Tel.  Co. 


(^    406]  COMMON   LAW    LIAIJIi.lTlKS.  380 

itv — and  a  LctU'i-  \  i\'w,  we  tliiuk,  in  which  to  consider  the  subject — 
is  to  the  contrary. •-'■'      There  is  a  distinction  between  the  two  kinds 
oi  messages  out  of  which  the  duty  of  the  company,  witli  respect  to  the 
tw(»  arises.    It  is  very  true,  that  it  is  as  much  the  duty  of  the  company 
to  exercise  the  same  care  and  diligence  in  the  transmission  of  one 
as  in  the  other;  but  the  duty  of  the  company,  arising  out  of  one,  may 
be  very  greatly  lessened  by  a  clearer  knowledge  of  the  contents  of  the 
message.      In  other  words,  there  is  no  question,  but  that  it  requires 
a  nuich  greater  degree  of  care  to  transmit   accurately    and   correctly 
a  cipher  or  obscure  message  than  it  does  one  which  is  clearly  and 
plainly  M-ritten  out.     Any  operator  or  interpreter  can,    with   a   much 
gi-cater  degree  of  accuracy,    communicate    a    message    or    statement 
when  he  understands  the  meaning  of  it,  than  he  could  if  the  message 
or  statement  was  not  understood.     Then,  it  seems  to  us  that  where 
it  does  require  a  much  greater  degree  of  care  in  transmitting  cipher 
messages,  that  the  company  might  relieve  itself  of  some  of  these  re- 
sponsibilities by  a  contract  to  that  effect.      It  is  also  true  that  the 
transmission  of  a  message  in  cipher  is  a  good  scheme  by  which  the 
nature  of  the  business  to  be  accomplished  may  be  kept  secret ;  but,  as 
elsewhere  said,  it  is  the  duty  of  these  companies  not  to  divulge  the 
contents  of  any  message  entrusted  to  their  care.     This  duty  has  been 
imposed,  in  many  states,  by  statutes,  a  violation  of  which  would  sub- 
ject the  company  and  its  operators  to  punishment.      This  is  a  duty 
also  imposed  on  these  companies  for  public  policy,   a  violation  of 
which,  in  this  sense,  would  subject  them  to  an  action  ex-delicto  or 
ex-contraciit.     So,  it  will  be  clearly  seen,  there  is  no  plausible  reason 
for  holding  that  these  contracts  could  be  made  on  the  gTOund  that 
tlie  contents  of  the  message  may  become  known.     This  being  the  con- 
dition of  affairs,  it  seems  that  a  contract  could  be  entered  into  by 
which  the  company  could  exempt  itself  for  losses  caused  by  errors 
jnade — not  negligently  but  after  exercising  due  care — in  the  trans- 
mission of  messages. 

'=»  Prill  nose  v.  West.  U.  Tel.  Co.,  154  H)  So.  13;),  4G  Am.  St.  Rep.  734;  West. 

U.  S.  1;   Cannon  v.  West.  U.  Tel.  Co.,  I'.  Tel.  Co.  v.  Cooper,  71  Tex.  507.  1  L. 

100  N.   C.   311.   0   Am.  Eep.   590;   Hill  K.  A.  728,  10  Am.  St.  Rep.  772. 
V.    West.   U.   Tel.   Co.,   42   S.   Car.   367, 


390  TELEGRAPH  AND   TELEPHONE    COMPANIES.  [^    407 

§  407,     Where  and  when  messages  accepted. 

Another  stipulation  usually  found  on  these  blanks  is  that  the  lia- 
bility of  the  company  for  any  loss  arising  out  of  or  in  connection  with 
the  transmission  of  messages  does  not  attach  until  the  message  is  de- 
livered to  and  accepted  at  one  of  its  .transmitting  oflB.ces.  This  has 
been  held,  on  good  reason,  to  be  a  valid  stipulation.  ^^"^  It  is  hardly 
necessary  to  go  into  the  reason  for  sustaining  this  rule,  for  it  is  en- 
tirely too  clear  for  argument,  that  the  liability  of  the  company  should 
not  attach  until  after  the  message  is  received  at  its  place  of  business. 
The  most  essential  requirement  of  this  stipulation,  however,  is,  that 
the  message  must  have  been  filed  in  one  of  the  transmitting  offices 
before  the  error  was  made;  and  it  matters  not  so  much  by  whom  it 
was  delivered,  provided  it  was  accepted  by  a  proper  employee  of  the 
company.  Thus,  if  the  message  was  delivered  to  an  agent  of  the  com- 
pany when  absent  from  his  office,  but  the  same  was  duly  filed  by  him 
on  his  return,  and  its  delay  occurred  after  such  filing,  the  company 
cannot,  under  such  circumstances,  receive  any  protection  from  this 
stipulation.  ^^^ 

§  408.     Delivery  to  messenger — valid. 

Another  stipulation  which  is  in  close  connection  with  the  one  dis- 
cussed in  the  preceding  section  is,  that  if  a  message  is  sent  to  one 
of  the  transmitting  offices  of  the  company  by  one  of  its  messengers, 
he  acts  for  that  purpose  as  the  agent  for  the  sender.  This  rule  has 
been  held  reasonable,  even  though  the  message  was  delivered  to  one 
of  the  company's  delivery  messengers  who  was  acting  in  that  capacity 
at  that  time,  provided  he  did  not  have  authority  from  the  company 
to  receive  the  message.  ^^-  The  duty  of  these  messengers  is  to  deliver 
the  message  to  the  addressee,  and  when  this  shall  have  been  done 
their  duty  is  at  an  end.  As  was  said :  "They  are  not  sent  out  from  the 
company's  office  to  solicit  telegrams,  and  being  engaged  in  a  most 
subordinate  work  of  the  company's  service,  it  is  presumed  that  they 

""Stamey  v.   West.  U.  Tel.    Co.,    92  »=Ayres     v.     West,.     U.      Tel.     'Co.. 

Ga.  G13,  44  Am.  St.  Rep.  95,  18  S,  E.  6r  N.    Y.   App.    Dev.    149;    Stamey   v. 

1018.  West.  U.  Tel.  Co.,  92  Ga.  613,  44  Am. 

'^  West.  U.  Tel.  Co.  v.  Pruett,  35  St.  St.  Eep.  95,  18  S.  E.  1018. 
W.  78. 


>§    409]  COMMON  LAW  LIABILITIES.  391 

are  not  invested  by  tlie  company  with  the  powers  of  receiving  the 
company's  charges  or  fees  for  the  transmission  of  telegrams."  ^^^  This 
stipulation  affords  no  protection  to  the  company,  if  the  message,  de- 
livered by  the  messenger,  request  a  reply,  and  the  company  directs 
the  messenger  to  obtain  from  the  addressee  such  reply.  ^^^  The  com- 
pany may,  however,  waive  its  rights  acquired  under  the  stipulation. 
Thus,  if  it  has  been  the  custom  of  the  company  to  consider  a  delivery 
to  the  messenger  a  delivery  to  the  company,  it  cannot  obtain  protec- 
tion under  this  stipulation. 

§  409.     Waiver  of  stipulation  limiting  company's  liability. 

Stipulations  limiting  the  liability  of  telegraph  companies,  or  fixing 
the  time  and  manner  of  presenting  claims  or  notices,  may  be  waived 
by  the  company  impliedly  by  conduct  as  well  as  expressly.  ^^^  Thus, 
where  the  company  received  a  claim  and  acted  upon  it  after  the  ex- 
piration of  the  time,  without  any  objection  on  that  account,  it  will 
be  presumed  that  the  stipulation  has  been  waived. ^^^  So,  also,  it 
is  required  that  the  claim  shall  be  presented  in  writing,  but  if  they 
are  received  and  acted  upon,  or  there  is  a  promise  to  act  upon  them 
^\^thout  objection  by  the  company  on  this  account,  it  will  be  deemed 
that  it  has  made  a  waiver  of  this  requirement.  ^^^  And  a  stipulation 
limiting  the  company  to  a  certain  sum  is  waived  when  the  company, 
in  adjusting  the  damages,  agrees  to  pay  the  injured  party  a  larger 
sum  than  that  stated  in  the  contract  limiting  its  liability. ^^^  But  it 
has  been  held  that  an  injured  party  has  no  right  to  rely  upon  the 
promise  of  one  of  the  company's  agents  to  waive  a  provision  as  to 

"'Stamey   v.    West.   U.   Tel.   Co.,   92  '*"  International,  etc..  R.  Co.  v.     Un- 

Ga.  613,  44  .\in.  St.  Eep.  98,  18  S.  E.  dcrwood,  62  Tex.  21;  Hudson  v.  North- 

1018.  ern  Pac.  R.  Co.,  60  N.  W.  (Iowa)  608. 

,     '"  Will  V.  Postal  Tel.  Cable  Co.,  3  N.  '"  Bennett  v.  Northern  Pac.  Ex.  Co., 

Y.  App.  Div.  22.  12  Oregon  49,  6  Pac.  160;  Rice  v.  Kan- 

"*  Galveston,  etc.,  R.  Co.  v.  Ball.  80  sas  Pac.  R.  Co.,  63  Mo.  314;  Atchison. 

Tex.  602,  16  S.  W.  441;  Hess  v.  Mis-  etc.,  R.  Co.  v.  Temple,  47  Kan.  7,  27 

soiiri   Pac.   R.   Co.,   40   Mo.   App.   202;  Pac.  98,   13  L.   R.  A.  302n. 

Merrill  v.  American  Ex.  Co.,  62  N.  H.  '» Chicago,  etc.,    R.    Co.    v.    Katzen- 

514;  Glenn  v.  South.  Ex.  Co.  86  Tenn.  bach,  118  Ind.  174,  20  N.  E.  709. 
594,  8  S.  W.  152;  Hudson  v.  Northern 
Pac.  R.  Co.,  60  N.  W.   (Io^Ya)   COS. 


392  TELEGKAPH   AND   TELEPHOS-E    COMPANIES.  [^    4:09 

the  time  within  which  suit  must  be  brought,  when  he  knows  that 
such  agent  has  no  riiiht  to  adjust  such  claim  without  authority  from 
the  company.  ^^* 

§  410.     Burden  of  proof. 

It  may  often  become  of  great  importance  when  these  companies 
attempt  to  exonerate  themselves  from  losses  by  these  stipulations  or 
special  contracts,  to  determine  upon  whom  the  burden  of  proof  rests. 
There  is  some  conflict  of  authority  upon  some  phases  of  this  subject. 
But  the  proposition  seems  to  be  pretty  well  settled,  that  proof  of 
loss,  caused  in  the  transmission  or  delivery  of  messages,  generally 
raises  a  presumption  of  negligence  or  fault  on  the  part  of  the 
company;  and  the  burden  rests  upon  the  latter  to  explain  or 
account  for  the  loss  in  some  way  in  order  that  it  may  be  exoner- 
ated.^*" If  the  company  claims  that  the  loss  or  damage  occurred 
from  some  cause  excepted  by  the  stipulation  or  special  contract,  the 
burden  is  upon  the  company  to  show  that  fact.^*^  As  we  have  seen, 
however,  the  company  is  generally  liable  for  its  own  negligence,  even 
though  the  loss  was  from  some  excepted  cause,  occasioned  by  its  fail- 
ure to  exercise  due  care.  In  many  states  the  burden  is  upon  the 
company  not  only  to  show^  that  the  loss  was  within  the  terms  of  the 
exception,  but  also  that  the  loss  was  not  caused  by  any  negligence  on 
its  part,  at  least,  none  which  was  a  proximate  cause  of  the  loss.  There 
is  some  authority  which  supports  the  rule  that,  after  the  loss  is  shown 
to  be  within  the  exception,  the  burden  of  proof  then  rests  upon  the 
plaintiff  to  show  negligence  upon  the  part  of  the  company.  ^^^  ^rai- 
nent  judges  and  textwriters  approve  the  former  rule,  and  we  are  in- 
clined to  think  that  the  better  reasoning  is  in  favor  of  it.^"^ 

'«»Gulf,  etc.,  R.  Co.  V.  Brown,  24  S.  '"Little  Roek,  etc.,  Co.  v.  Talbat,  39 

W.    (Tex.)    918.  Ark.  523;  The  same  v.  Harper,  44  Ark. 

1^'  Canfield  v.  Baltimore,  etc.,  R.  Co.,  208 ;  Whiting  v.  St.  Louis,  etc.,  R.  Co., 

93  N.   Y.   532;    Grogan  v.  Adams   Ex.  101  Mo.  631,  14  S.  W.  743,  10  L.  R.  A. 

Co.,  114  Pa.  St.  523,  7  Atl.  134;  Adams  002;    Smith  v.  Xorth  Carolina  R.  Co., 

Ex.   Co.  V.  Haynes,  42  111.   89;   Mann  04  N.  C.    235;    Railway    Co.    v.    Man- 

V.   Birchard,   40  Vt.   326;    Chapman  v.  Chester   Mills,   88   Tenn.   653;    Buck  v. 

New  Orleans,  etc.,  R.  Co.,  21  La.  Ann.  Pennsylvania   R.    Co.    150    Pa.    St.    170 

224,  99  Am.  St.  Rep.  722.  24  Atl.  678. 

'"Maghee  v.  Camden,  etc.,  R.     Co.,  "'Id. 
45  N.  Y.  514;  Keeney  v.  Grand  Trunk 
K.  Co.,  47  X.  Y.  525. 


§  ^11] 


coM:\r()X  i,A\v  i-iahii-itiks. 


I  Jo 


§  411.     Proof  of  assent  to  stipulation. 

Ordinarily  a  party  is  not  buiiiid  lo  a  rule  or  regulation  by  which 
a  carrier  seeks  to  limit  his  liability,  \inless  the  same  has  been  brought 
to  his  notice.^"*'*  But  in  the  case  of  telegraph  companies,  the  rule 
seems  to  bo  somewhat  different.  The  message  blank,  furnished  by 
these  companies  to  their  customers,  contains  contracts  and  stipula- 
tions which  are  so  arranged  therein  that  the  sender,  when  he  affixes 
his  name  thereto,  is  conclusively  presumed,  in  the  absence  of  fraud 
or  imposition,  to  have  assented  to  the  terms  of  the  contract,  and  is 
bound  by  all  these  "which  are  reasonable, ^■*'^  even  though  he  did  not 
read  or  notice  them,  or  was  not  able  to  read  them.^^"  He  is  presumed 
to  have  had  notice  of  these  from  the  fact  that  they  are  contained 
on  the  blanks  and,  in  a  sense,  he  has  notice  of  them.  A  very  common- 


'"  Adams  v.  Hayles,  42  111.  89;  De- 
Rutte  V.  New  York,  etc.,  Tel.  Co.,  1 
Daly  (N.  Y.)  559,  30  How.  Pr.  (N.  Y.) 
433. 

^^  United  States. — Beasley  v.  West. 
U.  Tel.  Co.,  39  Fed.  181;  Primrose  v. 
West.  U.  Tel.  Co.,  154  U.  S.  1. 

Georgia.— nm  v.  West.  U.  Tel.  Co., 
85  Ga.  425,  11  S.  E.  874,  21  Am.  St. 
Rep.  166;  Stamey  v.  West.  U.  Tel.  Co., 
92  Ga.  613,  44  Am.  St.  Rep.  95,  18  S. 
E.  1008. 

Iowa. — Sweetland  v.  Illinois,  etc., 
Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep. 
285. 

Kentucky. — Camp  v.  West.  U.  Tel. 
Co.,  1  Met.  (Ky.)  164,  71  Am.  Dec. 
461. 

Maryland.  —  Bimey  v.  New  York, 
etc..  Printing  Tel.  Co.,  18  Md.  341,  81 
Am.  Dec.  607. 

Massachusetts. — Redpath  v.  West.  U. 
Tel.  Co.,  112  Mass.  71,  17  Am.  Rep. 
(I!);  Grinnell  v.  West.  U.  Tel.  Co.,  113 
Mass.  299,  IS  Am.  Rep.  485. 

.l/jc7ii(7a».— West.  U.  Tel.  Co.  v.  Ca- 
rew,  15  Mich.  525. 

Minnesota. — Cole  v.  West.  U.  Tel. 
Co.,  33  Minn.  227. 


Xchraska.— Becker  v.  West.  U.  Tel. 
Co..  11  Neb.  87,  38  Am.  Rep.  356,  7  N. 
W.  808. 

New  York. — Breese  v.  United  States 
Tel.  Co.,  48  N.  Y.  132,  8  Am.  Rep.  526.; 
Young  V.  West.  U.  Tel.  Co.,  65  N.  Y. 
103,  34  N.  Y.  Sup.  Ct.  390;  Kiley  v. 
\Vest.  U.  Tel.  Co.,  109  N.  Y.  231 ;  Pear- 
sail  V.  West.  U.  Tel.  Co.,  44  Hun  532 : 
Schartz  v.  Atlantic,  etc.,  Tel.  Co.,  18 
Ilun    159. 

Pennsylvania. —  Wolf  v.  West.  U. 
Tel.  Co.,  62  Pa.  St.  83,  1  Am.  Rep.  387 ; 
I'as^iiore  v.  West.  U.  Tel.  Co.,  78  Pa. 
St.   238. 

South  Carolina. — Young  v.  West.  U. 
Tel.  Co.,  65  S.  Car.  93,  43  S.  E.  448: 
Pinckney  v.  West.  U.  Tel.  Co.  19  S. 
C.  73,  45  Am.  Rep.  765. 

Tennessee. — Marr  v.  ^Vest.  U.  Tel. 
Co.,  85  Tenn.   530. 

Texas. — Womack  v.  West.  U.  Tel. 
Co.,  58  Tex.  179,  44  Am.  Rep.  614; 
West.  U.  Tel.  Co.  v.  Ed.-5all.  63  Tex. 
068;  Anderson  v.  West.  U.  Tel.  Co..  84 
Tex.   17. 

'"  West.  U.  Tel.  Co.  v.  Henderson,  89 
Ala.  510,  7  So.  419,  18  Am.  St.  Rep. 
148;  West.  U.  Tel.  Co.  v.  Edsall.  63 
Tex.   068. 


394  TELEGRAPH  AIN'D  TELEPHONE  COMPANIES.  [<§    411 

sense  rule — and  one  the  reason  of  which  there  is  no  necessity  for 
argument — is.  that  no  statement,  agreement  or  any  other  kind  of  writ- 
ing, should  be  signed  until  it  shall  have  been  read  and  understood. 
The  rule  applies  to  contracts  and  regulations  of  telegraph  companies 
as  it  does  to  writings  given  out  by  any  other  corporation  or  individ- 
ual. So,  it  has  been  held  that  it  will  be  presumed  the  sender  under- 
stood the  contents  of  the  blank  and  accepted  the  terms;  and  he  is 
therefore  estopped  from  denying  or  disputing  the  agreement.  ^^"^  ISTei- 
ther  can  he,  in  absence  of  misrepresentation  or  fraud,  with  full  op- 
portunity to  be  informed  of  its  contents,  avoid  the  contract  upon  the 
ground  of  his  negligence  or  omission  to  read  it,  or  to  avail  himself  of 
such  infoi-mation.^'*^  Fraud  will  vitiate  all  contracts,  and  if  there 
has  been  any  misrepresentations  or  fraud  perpetrated  by  the  company 
on  the  sender,  of  course  the  contract  will  not  be  binding.  It  may 
seem  to  be  a  hard  rule  to  impose  such  laws  upon  people  who  may  be 
too  ignorant  to  read  the  contents  of  these' blanks,  or  who  may  not 
have  had  the  time  to  read  them.  But,  as  it  has  often  been  said,  these 
companies,  like  all  other  public  institutions,  have  the  right  to  pass 
and  enforce  all  reasonable  rules  and  regulations  for  the  betterment 
of  their  business;  and  they  may  also  limit  to  a  certain  extent  some 
of  their  common-law  liabilities  by  stipulations  and  contracts  assented 
by  their  customers.  These  rules  are  certain,  fixed  and  universal,  and 
become  part  of  the  laws  of  their  institution,  and  are,  in  a  sense,  pro- 
mulgated to  the  public  by  notices  on  placards  conspicuously  tacked  in 
their  oflSces  and  elsewhere,  and  by  notices  given  in  their  message 
blanks.  This  is  the  only  means  by  which  their  regulations  and  con- 
tracts would  likely  come  into  the  hands  of  those  who  should  desire  to 
employ  them,  and  it  is  the  duty  of  the  latter — even  though  it  may 
be  some  imposition  on  them — to  accept  the  notice  of  these  in  this 
way;  and  it  is  presumed  that  they  have  been  so  accepted  and  agreed 
to  when  the  sender  has  attached  his  signature  to  the  blank. ^^® 


"^Breese  v.  United  States  Tel.     Co.  48  N.  Y.  132,  8  Am.  Rep.  526;  Soumet 

48  N.  Y.  132,  8  Am.  Rep.  526;  Belger  v.  .National,  etc.,  66  Barb.  284;  Wom- 

V    Densmore,   51   N.  Y.    166;    Womack  ack  v.  West.  U.  Tel.  Co.,  58  Tex.  176, 

V.  West.  U.  Tel.  Co.,  58  Tex.   176,  44  44  Am.  Rep.  614. 

Am.  Rep.  614.  "'Gray  on  Tel.,  p.  52. 

^"Breese   v.    United    States  Tel.   Co., 


<§,  413]  co>r>rox  i,aav  liabilities.  395 

§  412.     Contrary  holding. 

It  is  held  ill  some  jurisdictions  that  the  mere  fact  that  the  sender 
aflBjtes  his  signature  does  not  of  itself  make  the  contract  binding  upon 
him,  unless  it  is  actually  brought  to  his  notice,  and  he  signs  with 
full  knowledge  of  its  terms.  ^^"  In  those  states  in  which  this  is  the 
holding,  the  question  of  knowledge  and  assent  is  a  question  of  fact  ^"^ 
to  be  left  to  a  jury  upon  evidence  aliunde.  As  was  said  on  the  sub- 
ject: ''Whether  he  (the  sender)  had  knowledge  of  its  terms  and  as- 
sented to  its  restrictions,  is  for  a  jury  to  determine,  as  a  question 
of  evidence  aliunde,  and  all  the  circumstances  attending  the  giving 
of  the  blank  are  admissible  in  evidence  to  enable  the  jury  to  deter- 
mine that  fact,"  ^^-  and  ''slight  evidence  of  acceptance  of,  or  assent 
to,  such  regulations,  would  no  doubt  suiRce,  but  it  is  for  the  jury  to 
determine."  ^"^  While  this  is  the  rule  in  some  courts,  yet  the  weight 
of  authority,  both  court  decisions  and  text-writers,  is  to  the  effect  as 
stated  heretofore.  It  will  be  seen,  further,  that  some  of  these  decis- 
ions were  rendered  in  cases  where  the  messages  were  written  out  by 
the  sendee  on  paper  other  than  on  the  blank  forms  furnished  by  the 
company,  but  were  later  attached  to  these  forms  by  the  operator.  ^^"^ 

§  413.     Special  contracts — not  applicable. 

The  rule  first  stated,  we  think,  should  not  be  applicable  where 
the  contract  is  special,  or  one  which  has  been  but  recently  adopted  by 
the  company,  when  its  purpose  is  to  exempt  it  from  some  of  its  com- 
mon-law liabilities.  ^^^     In  these  instances  the  sender  should  be  spec- 

'" Tyler  v.  West.  U.  Tel.  Co.,  60  111.  '"In  Webbe    v.    West.    U.    Tel.    Co., 

421,  14  Am.  Eep.  38;  Brown  v.  Eastern  169  111.  610,  48  N.  E.  670,  61  Am.  St. 

R.  Co.,   11   Cush.    (Mass.)    97;   Illinois  Rep.    210,    the     court,     said:      "Some 

Central  R.  Co.  v.  Frankenburg,  54  111.  of '    the     cases     seem     to     hold     that 

88,  5  Am.  Rep.  92;  West.  U.  Tel.  Co.  v.  the     printed     conditions     upon     blank 

Stevenson,  128  Pa.  St.  442,  15  Am.  St.  forms  of     telegraphic     dispatches,     in- 

Rep.  686,  18  Atl.  441,  5  L.  R.  A.  515.  eluding      the      one      in      reference     to 

■"  West.  U.  Tel.     Co.     v.     Stevenson.  the  limit  of  sixty  days,  are  mere  regu- 

above  cited.  lations,  and  not  contracts  between  the 

•"Tyler  v.  West.  U.  Tel.  Co.,  60  111.  sender    of    the    message    and    the    tele- 

421,   14  Am.  Rep.  38,  approved  by  61  graph  company.     The  force  of  the  dis- 

Am.  St.  Rep.  209.  tinction  thus   sought  to  be   made   lies 

"« Id.  in  the  fact  that,  if  the  conditions  or 

'"See  note,  151.  stipulations  arc  considered  as  mere  reg- 


396  TELEGKAPH   AKD    TELEPHONE    COMPANIES.  [^    41u 

i;illv  referred  to  these  contracts,  in  order  that  lie  may  give  special 
consideration  to  their  terms  before  agreeing  to  them.  It  is  a  rnle 
in  the  law  of  contracts  that  the  contracting  parties  must  be  equally 
situated,  in  order  to  consider  fairly  the  tenns  of  the  contract.  In 
other  words,  neither  should  have  any  advantage  over  the  other  by 
the  position  held;  and  nothing  should  be  given  out  or  retained  by 
either  party,  which  would  have  the  tendency  to  mislead  the  other. 
It  would  be  unfair  and  illegal  to  attempt  to  force  the  terms  of  such 
a  contract  u}ion  senders  who  had  no  knowledge  of  them,  or  who  may 
not  have  had  an  opportunity  to  consider  them  fairly  and  uninflu- 
enced. As  Avas  said  in  the  preceding  section,  those  rules  therein 
were  binding  on  the  sender,  although  he  fails  or  is  unable  to  read 
them ;  but  if  he  is  unable  to  read  special  contracts  on  the  account  of 
his  illiteracy,  it  is  the  duty  of  the  company  to  inform  him  of  their 
terms,  or  to  give  him  special  notice  of  them,  in  order  that  he  may 
get  others  to  read  them  for  liim.  These  contracts  and  stipulations 
contained  in  the  message  blanks  are  more  especially  beneficial  to  the 
company,  and  for  this  reason  no  advantage  should  be  taken  on  ac- 
count of  its  position,  and  no  fraud,  therefore,  should  be  perpetrated 
on  the  public. 

§  414.     Small  type — not  fraud. 

It  very  often  becomes  necessary  for  these  stipulations  to  be  written 
ill  small  type,  otherwise,  on  account  of  the  number  and  length  of  them 
the  message  blanks  would  be  too  large,  cumbersome  and  inconvenient. 
Should,  however,  this  matter  be  written  so  as  to  mislead  the  sender, 
but,  on  the  other  hand,  the  same  is  referred  to  by  larger  type,  this 
will  not  be  such  an  imposition  or  fraud  as  will  aifect  the  validity  of 
the  stipulation. ^^"^  The  general  method  by  which  the  sender  is  re- 
ferred to  these  stipulations,  is  by  a  notice  written  out  on  the  front 
part  and  at  the  bottom  of  the  message  blank,  and  in  the  following 
words:     "Head  the  notice  and  agreement  on    liack."      So,    whenever 

ulations,    the    assent   of    the   sender   to  sent   of  the   sender   must  he   shown   in 

them    is    not    necessary,    hut    that    he  order  to  hind  liim." 

will  be  bound  if  they  are  brought  home  «« Wolf  v.  West.  U.  Tel.  Co.,  62  Pa. 

to  his  knowledge;  whereas,  if  they  are  St.  83,  1  Am.  Rep.  387. 

held  to  be  parts  of  a  contract,  the  as- 


§    415]  COMMON  LAW  LIABILITIES. 


397 


the  sender  tills  out  one  of  these  message  blanks,  he  is  presumed  to 
have  observed  this  notice  and  complied  with  its  request.  At  the  top 
and  on  the  front  of  these  blanks  may  also  be  seen  notices  referring 
the  sender  to  certain  agreements  which  are  to  be  accepted  by  him. 
Then,  turning  to  the  back  of  these  blanks,  there  may  be  seen  written 
at  the  top  in  large  letters,  a  notice  that  all  the  stipulations  thereunder 
enter  into  and  become  a  part  of  the  contract  for  sending.  There  is 
nothing  about  these  blank  forms  which  would  have  a  tendency  to  mi.^- 
lead  anyone,  but  nearly  all  of  them  contain  notices  which  point  al- 
most directly  to  each  and  every  stipulation,  whether  it  be  written  in 
bold  type  or  in  other  type  not  so  large. 

§  415.     Assent  of  addressee. 

One  of  the  most  dithcult  subjects  with  which  we  have  been  so  far 
confronted  in  this  work  is.  Whether  the  assent  of  the  addressee  is 
necessary  to  make  these  stipulations  binding  on  him  ?  This  subject 
lias  been  very  ably  discussed  both  ways  by  the  most  eminent  judges 
and  textwriters,  who  have  advanced  reasons  which  appear  unanswer- 
able. We  shall  atcmpt  to  set  out  the  ideas  given  each  way,  and 
then  endeavor  to  harmonize  these  as  far  as  it  is  possible.  The  answer 
to  this  question  depends  upon  the  ground  upon  which  the  court  bases 
the  right  of  recovery.  Some  of  the  courts  consider  that  the  receiver's 
right  to  recover  rests  entirely  upon  the  contract  made  by  the  sender, 
upon  the  princii)le  that  where  two  parties  contract  for  the  benefit 
of  a  third,  such  third  party  may  maintain  an  action  for  the  breach 
of  the  agreement  in  his  own  right.^^'  Whenever  it  is  considered  in 
this  light,  it  necessarily  follows  that  the  receiver  can  assert  no  rights 
except  such  as  are  embodied  in  the  contract  made  by  the  sender,  and 
he  is,  therefore,  bound  by  the  conditions  and  stipulations  appearing 
upon  the  blank  ujion  which  the  message  is  sent,  and  to  which  the 
-ender  has  assented. ^^^  , 

'^■ManiiM-    v.    West.    U.    Tel.    Co..    94  i)0  Ga.  2r)4,   IG  S.   P..  S.3 ;   Sweetlaml  v. 

reiiii.  448.  Illinois,  etc..  Tel.  Co..  27   Iowa   433,    1 

"MVest.   U.   Tel.   Co.  v.   Waxclhauui.  Am.  Rep.  285:  Russell  v.  We^^t.  U.  Tel. 

113   Ga.   1017,   3!)   S.   E.   443,  50   L.   R.  Co..  57  Kan.  230,  45  Pao.  5!18 :  Ellis  v. 

A.  741n;   Stanley  v.  West.  U.  Tel.  Co..  American   Tel.    Co..    13    Allen    (Mass.) 

02  Ga.  613.  IS  S.  E.   1008,  44  Am.  St.  22(1 :    :\la>s,'njiale  v.   West.   U.   Tel.  Co.. 

R,.]).   05:    West.   V.  Tel.   Co.   v.   James.  17   M<>.   Aj.p.   257:   Curtin  v.   West.   U. 


398  TELEGEAPII    AXD    TELEPHONE    COMPANIES,  [§    416 

§  416.     Same  continued — illustrations. 

In  an  action  brought  by  the  receiver  of  a  telegram  to  recover  dam- 
ages for  a  failure  to  promptly  deliver  the  message,  according  to  these 
decisions  the  plaintili"  would  be  governed  by  the  contract  as  made  by 
the  sender  in  his  behalf.  ^^^  In  one  case  it  was  held  that  both  the 
addressee  and  the  sender  were  bound  by  the  stipulations  in  the  mes- 
sage blanks.  ^^'^  So,  it  has  been  held  that  in  order  for  the  receiver 
to  recover,  he  must  have  presented  his  claim  in  writing  within  the 
limitation. ^^^  As  was  said:  ''The  plaintiff  had  no  cause  of  action 
independent  of  the  contract  made  by  the  sender  of  the  message.  Hav- 
ing failed  to  present  his  claim  within  the  time  required  by  the  con- 
tract, he  has  lost  whatever  right  of  action  the  contract  gave  him."  ^^^ 
It  has  been  held,  however,  that  if  the  blank  form  on  which  the  mes- 
sage w^as  written,  when  delivered  to  the  company,  contained  -no  stip- 
ulations in  regard  to  a  certain  time  within  which  the  claim  should 
be  presented,  the  addressee  would  not  be  bound  by  such  stipulation, 
although  this  condition  may  have  been  in  the  message  blank  delivered 
to  him.-^^^  It  has  also  been  held  that,  when  one  of  these  blanks  con- 
tained a  stipulation  that  the  company  would  not  be  liable  in  damages 
beyond  a  certain  amount  for  errors  made  in  its  transmission,  unless 
the  same  was  ordered  to  be  repeated,  the  addressee  was  bound  by  this 
condition.  In  this  case  the  message  was  delivered  to  the  addressee 
on  a  blank  containing  the  same  condition,  and  it  was  shown  that  there 
was  no  further  proof  of  negligence  inthe  sending  of  the  message  other 
than  that  resulting  simply  from  the  error. ^•^'^      The  opinions,  in  the 

Tel.   Co.   IG  Misc.    (N.  Y.)    347;   Aiken  Ga.  613,  44  Am.  St.  Kep.  95,   18  S.  E. 

V.  West.    U.    Tel.    Co.,    5    S.    C.    358;  1008. 

Mania  v.  West.   U.  Tel.  Co.,  94  Temi.  '"  Manier    v.    West.    U.    Tel.  Co.,  94 

442;    West.    U.   Tel.    Co.,    v.    Neill,    57  Tenn.   442;    Russel  v.     West.   U.     Tel. 

Tex.  283,  44  Am.  Rep.  589;   West.  U.  Co.,  57  Kan.  230,  45  Pac.  598. 

Tel.  Co.  V.  Culberson,  79  Tex.  65;   See  '"^Eussel    v.    West.    U.    Tel.    Co.,    57 

note  to  Camp  v.  West.  U.  Tel.  Co.,  71  Kan.  230,  45  Pac.  598. 

Am.  Dec.  466;  Berkett  V.  West.  U.  Tel.  '"West.    U.    Tel.    Co.    v.    Ilinkle,    30 

Co.,  103  Mich.  361,  61  K.  W.  645,  33  L.  Tex.  Civ.  App.  518. 

R.  A.  404,  50  Am.  St.  Rep.  374;  West.  '"'Ellis  v.  American  Tel.  Co.,  13  Al- 

U.   Tel.   Co.  V.   Neel,   86  Tex.   368,   40  len  226;  West.  U.  Tel.  Co.  v.  Neill,  57 

Am.  St.  Rep.  847.  Tex.  283,  44  Am.  Rep.  589;  Sweetland 

150  Id.  V.  Illinois,  etc.,  Tel.  Co.,  27  Iowa    433, 

'""Stanley  v.   West.   U.   Tel.   Co.,   92  1  Am.  Rep.  285. 


<^    417]  COMMON   LAW   LIAIilLITlES.  399 

above  cases,  have  lioen  held  differently  in  other  jurisdictions,  in 
which  the  courts  say  that  the  stipulation  applies  to  the  sender,  and 
not  to  the  addressee.*"^  ''The  proposition,"  as  was  said,  ''that  the 
defendants  are  liable,  if  at  all,  only  in  case  the  message  is  repeated, 
as  contained  in  the  printed  conditions,  can  be  invoked  only  as  against 
the  sender,  if  against  any,  for  it  is  his  message,  his  language,  that 
is  to  be  transmitted,  and  it  is  only  known  to  the  receiver  when  deliv- 
ered. He  is  to  be  g-uided  or  informed  by  what  is  delivered  to  him, 
and  he  has  no  opportunity  to  agree  upon  any  such  condition  before 
delivery."  '^"^ 

§  417.     Same  continued — actions  in  tort. 

Some  of  the  authorities  maintain  that  the  right  of  action  which 
rests  in  the  addressee  of  a  telegram,  to  recover  for  the  negligence 
of  the  company,  does  not  arise  out  of  the  contract  made  between  the 
sender  and  the  company,  nor  out  of  the  contract  at  all,  but  for  a 
tort,  that  is,  for  a  breach  of  public  duty  on  the  part  of  the  com- 
pany. ^^'^  In  England,  the  doctrine  is  that  the  receiver  of  a  telegraphic 
message  cannot  sue  the  telegraph  company  on  the  ground  that  the 
obligation  of  the  company  springs  entirely  from  the  contract,  and 
that  the  contract  for  the  transmission  of  the  message  is  with  the 
sender  of  it.^°^  This  doctrine,  however,  has  never  prevailed  in  the 
United  States,  but  here  it  is  held  by  all  courts,  that  the  receiver  of 
a  message  may  maintain  an  action  against  the  company  for  a  breach 
of  the  latter's  public  duty,  or  an  action  on  tort.^^^  In  those  juris- 
dictions where  the  rule  is  that  the  receiver  can  only  maintain  his  ac- 
tion on  tort,  it  is  universally  held  that  the  stipulations  contained  in 
the  original  blank  or  contract  are  not  binding  upon  the  addressee  and 
do  not  affect  his  right  of  action.^' °      Under   this   doctrine,    the    ad- 

'«Tobin    V.    West.    U.    Tel.    Co.,    140  111.   248,  21   N.  E.  4,   15  Am.   St.  Rep. 

Pa.   St.   375,   20   Atl.    324,   28   Am.   St.  109;    West.   U.   Tel.   Co.   v.   Fenton,   52 

Rep.  802;   New  York,  c-tc,  Tel.   Co.  v.  Ind.  1;  West.  U.  Tel.  Co.  v.  [McKibbin, 

Dryburg,  35  Pa.  St.  298,  78  Am.  Dec.  114  Ind.  511. 

338.  »«nVest.  U.  Tel.   Co.  v.   Dubois,   128 

"•La   Grange   v.    Southwestern     Tel.  111.   248,   15  Am.   St.   Rep.    110,  21    N. 

Co.,  25  La.  Ann.  383.     See  also  Tyler  E.  4. 

V.    West.   U.   Tel.   Co.,   60   111.   421,    14  '«» Id. 

Am.   Rep.   38.  '"See  note  167. 

1"  West.    U.   Tol.    Co.    V.    Dubois,    128 


rtOO  TELEGRAPH   a:^D   TELEPHONE    COMPANIES.  [§    4l7 

dressee  is  not  bouiul  hy  the  stipulation  in  these  bhmks,  where  it  is 
required  that  the  claim  must  be  presented  in  writing  within  a  speci- 
fied time.^"^  jSTeither  will  the  addressee's  right  of  action  be  affected 
h\  a  non-compliance  Avith  the  stipulation,  wherein  it  is  required  that, 
in  order  to  avoid  mistakes  in  the  transmission,  all  messages  should 
be  ordered  to  be  repeated ;  otherwise,  the  company  will  not  be  liable 
in  damages  beyond  a  certain  amount. ^''^-  It  has  been  said  by  these 
courts  that,  although  these  companies  endeavor  to  incorporate  the 
stipulations  upon  their  blanks  into  the  message  as  delivered,  they 
are  of  no  effect  upon  the  receiver  of  the  message,  under  this  rule — 
considering  him  as  not  a  party  to  the  contract  and  whose  only  right 
is  to  sue  in  tort — for  the  reason,  that  he  does  not  sign  the  message; 
and  unless  it  can  be  shown  that  such  stipulations  were  brought  to 
his  notice  and  assented  to  by  him,  he  is  not  bound  thereby.  ^'^^ 

§  418.     The  correct  view  as  considered. 

Whenever  the  fruits  and  benefits  of  a  contract  made  between  the 
sender  and  the  telegraph  company  flow  directly  and  exclusively  to  the 
use  of  the  receiver  of  the  message,  and  the  terms  of  the  stipulations 
contained  therein  are  not  unreasonable  with  respect  to  the  position 
in  which  he  stands  as  receiver,  he  is  bound  by  all  the  conditions  of 
such  contract  just  as  the  sender  would  be  if  the  latter  were  receiv- 
ing the  benefits  of  such  a  contract.  We  do  not  mean  to  say,  however, 
by  this,  that  the  receiver  may  not  sometime  sue  the  company  in  tort; 

'"^  West.  17.  Tel.  Co.  v.  McKibbin,  114  form    its    iniblie   duty    of   transmitting 

Ind.    511.      Croswell,    in    his    work    on  dispatch'.'S  promptly  and  with  due  care, 

the   Law   Relating   to   Electricity,   Sec.  and  has  nothing  to  do  with  the  special 

557,  says:     "In  actions  of  tort  by  the  contract    between    the    sender    and    the 

addressee   of   a  message,   it   is   difficult  telegraph      company,      and,      therefore, 

to  see  how  any  limit  of  time,  in  which  wliatever  stipulations  the    sender    may 

claims    must   be   made    against   a   tele-  make     with     the     telegraph     company 

graph  company  for  damages  occasioned  should  not  bind  the  addressee." 

by  error   or  negligence   in   sending  the  ''-  West.    U.    Tel.    Co.    v.    Fenton,    52 

message,    can    aflect    the    plaintiff.      In  ind.    1. 

.such  cases,  the  plaintiff  has  no  privity  '"  West.  U.  Tel.  Co.  v.  Lycan,  60  111. 

with    the    sender    of    the    message,   but  App.  124;  \Vebbe  v.  West.  U.  Tel.  Co., 

sues   solely   for  the  breach   of  duty  by  1(59   111.   610,   61   Am.   St.   Rep.  207,  48 

the   telegraph   company,   i.  e.,  the  fail-  N.   E.   670. 
ure  of  the  telegraph   company  to  per- 


<§,    418]  COMMON  LAW  LIABILITIES.  401 

for  there  may  be  instances  where  the  addressee  should  sue  the  com- 
pany for  a  breach  of  its  public  duties.  But  as  a  general  rule,  he 
should  sue  for  the  breach  of  contract  made  by  the  sender  and  the 
company  for  his  benefit.  It  follows,  therefore,  that  the  receiver  is 
bound  by  the  terras  of  the  stipulations  contained  in  the  contract  of 
sending,  and  it  is  presumed  that  the  receiver,  at  the  time  the  sender 
attaches  his  sii>-nuture  to  the  message,  gives  his  assent  to  the  stipula- 
tions therein  and  is  bound  from  that  time.  It  has  been  expressly  held 
in  one  case,  that  the  sender,  under  such  circumstances,  acts  as  agent 
for  the  receiver,  and  that  the  latter,  as  principal,  is  bound  by  all 
the  acts  of  his  agent  which  fall  within  the  scope  of  his  express  or 
apparent  authority. ^'^  In  order,  however,  to  bind  the  receiver  by 
nil  the  conditions  of  the  contract,  made  by  the  sender  in  his  behalf, 
they  must  be  reasonable  to  him  as  receiver.  As  will  be  clearly  seen, 
the  terms  of  the  stipulations  contained  in  these  blanks  may  be  rea- 
sonable and  therefore  binding,  if  considered  to  have  been  made  by 
the  sender  in  his  own  behalf;  but  they  would  not  be,  if  viewed  in 
the  light  that  they  were  entered  into  by  him  for  the  exclusive  bene- 
fit of  the  addressee.  If,  however,  the  addressee  knows  of  the  con- 
tract about  to  be  made,  or  has  notice  that  the  message  has  been  sent, 
the  reasonableness  of  the  stipulations  would  be  the  same,  both  to  the 
addressee  and  the  sender;  but  this  is  not  alwa^'s  the  case,  and,  of 
course,  this  fact  must  be  considered  in  determining  the  reasonable- 
ness and  binding  effect  of  them  upon  the  addressee.  For  instance, 
if  a  message  which  contains  business  matter  for  the  exclusive  bene- 
fit of  the  addressee  was  delivered  to  the  company  without  the  former's 
knowledge,  but  was  never  sent,  whereby  he  suffers  great  injury,  he 
will  not  be  precluded  from  recovering  such  loss,  although  the  claim, 
as  required  in  the  contract  for  sending,  was  not  presented  to  the 
company  within  the  limitations.  If  he  should  have  had  notice  of 
such  message  having  been  sent  before  the  expiration  of  the  limitation, 
a  claim  should  have  been  presented  if  there  remained  a  reasonable 
time  to  have  done  so  by  reasonable  diligence  on  his  part.^'^  The 
same  reasons  would  be  applicable  if  the  message  had  been  sent  but 

'"*  Coit  V.  West.  U.  Tel.  Co.,  130  Cal.  "» West.    U.    Tel.    Co.    v.    Phillip?.    2 

657,   63   Pac.  83,  80  Am.   St.  Rep.   53      Tex.  Civ.  App.  608. 
L.  R.  A.  678. 
T.  &  T.— 26 


402  TELEGRAPH   AND    TELEPHONE    COMPANIES.  [<§    41S 

never  delivered.  ^''^'  Therefore,  it  will  be  seen  that  these  rules  may 
be  reasonable  with  respect  to  the  sender,  but  at  the  same  time  may 
not  with  respect  to  the  addressee.  It  may  be  said,  however,  that  if 
the  addressee  has  received  notice  by  letter  or  otherwise  from  the 
sender  that  the  contract  of  sending  the  message  had  been  made,  and 
that  this  laiowledge  had  been  ascertained  within  a  sufficient  time  to 
have  given  him  a  reasonable  opportunity  to  have  complied  with  the 
terms  of  the  stipulations,  he  will  be  bound  by  them. 

§  419.     Assent — proof  of — what  amounts  to. 

The  opportunity  of  the  addressee  to  know  and  be  familiar  with  the 
regulations  of  the  company  are  primary  facts  and  do  not  create  any 
conclusive  presumption  of  knowledge,  no  matter  what  the  opportu- 
nity was.^'^'^  In  a  case  on  this  subject,  the  company  showed  that  for 
a  long  time  it  had  required  messages  to  be  written  on  a  blank  con- 
taining these  stipulations.  The  plaintiff  admitted  that  he  was  famil- 
iar with  the  appearance  of  the  blanks,  had  frequently  used  them  for 
^vriting  messages,  and  that  a  parcel  of  them  was  always  on  his  office 
desk,  but  averred  that  he  had  never  read  the  stipulation  and  had  no 
knowledge  of  its  terms.  It  was  held  that,  in  the  absence  of  evidence 
that  the  terms  of  the  stipulation  were  brought  home  to  him,  it  was 
proper  to  exclude  the  blanks  from  the  consideration  of  the  jury.^'^^ 
It  will  be  seen,  in  reading  this  case,  that  the  message  was  written 
out  on  a  blank  piece  of  paper,  and  in  this  manner  delivered  to  the 
company.  Of  course,  if  the  message  had  been  written  on  one  of  the 
message  blanks  containing  these  stipulations,  the  plaintiff,  as  said 
at  another  place,  would  be  bound  by  all  the  conditions  therein,  al- 
though he  failed  to  read  them  or  even  had  an  opportunity  to  do  so. 
We  think  that  a  correct  and  proper  conclusion  was  arrived  at  in  the 
above  case,  and  that  it  is  not  repugnant  to  the  decision  in  the  case 
where  the  message  was  written  on  a   mutilated   blank   of   the    com- 

'"Sherrill  v.  West.  U.  Tel.  Co.,  109  207;   Merchants'  Dispatch,  etc.,  Co.  v. 

N.  C.  527,    14    S.    E.    94;    Herron    v.  Moore,     88     111.     136,  30     Am.     Eep. 

West.  U.  Tel.  Co.,  90  Iowa  129,  57  N.  541;    Pearsall    v.    West.    U.    Tel.    Co., 

W.  696.  124   N.   Y.   256,   21   Am.   St.  Eep.   662. 

^"Webbe  v.  West.   U.   Tel.   Co.,    169  "'Pearsall  v.  West.  U.  Tel.  Co.,  124 

111.  610,  48  N.  E.  670,  61  Am.  St.  Rep.  X.  Y.  250,  21  Am.   St.  Rep.  662. 


i^    420]  COMMON   LAW   LIABILITIKS.  4:0'^ 

\}anj^~^  In  this  latter  case,  the  opportunity  of  the  plaintiff  to  know 
the  conditions  contained  in  the  message  blanks  were  about  the  same 
as  that  of  the  plaintiff  in  the  above  case.  But  in  the  first  place, 
there  was  some  doubt  as  to  whether  the  message  blank  was  mutilated 
at  the  time  the  message  was  written  thereon,  but  even  though  it  may 
have  been  mutilated  at  this  time,  we  think  the  court  had  a  coi-rect 
view  of  the  case  in  holding  that  the  plaintiif's  opportunity  was  suffi- 
cient to  give  him  knowledge  of  the  terms  of  the  stipulation.  Part, 
if  not  all,  of  the  stipulations  were  on  this  message  blank,  and  if  part 
of  these  were  torn  off  or  mutilated,  this  fact  would  not  of  itself  de- 
stroy the  effect  of  the  stipulation ;  for  that  part  which  remained  on 
the  blank,  would  be,  if  necessary,  sufficient  to  put  him  on  inquiry.  We 
do  not  think  that  either  of  these  cases  would  be  affected  by  the  fact 
that  the  plaintiff  was  a  stockholder  of  the  company,  for  it  is  not 
presumed  that  stockholders  have  any  better  knowledge  of  the  regu- 
lations adopted  by  the  directors  of  the  company  than  any  other  per- 
son.^80 

§  420.     Stipulation  posted  in  company's  office — not  binding. 

Occasionally  telegraph  companies  may  see  fit  to  post  some  of  their 
regulations  in  conspicuous  places  in  their  offices.  It  has  been  held 
that,  when  this  has  been  done,  these  regulations  enter  into  and  be- 
come a  part  of  the  contract  for  sending. ^^^  But  it  is  almost  univers- 
ally held  that  they  do  not  any  more  become  binding  on  the  sender 
than  other  stipulations  about  which  he  is  absolutely  ignorant. ^^- 
There  is  no  doubt  but  that  the  latter  holding  is  the  correct  view  of 
the  subject,  aside  from  the  fact  that  it  is  not  a  contract  assented  to. 
It  would  be  very  unwise  to  give  these  companies  the  power  to  bind 
anyone  in  their  business  with  such  regulations,  because  it  would  have 
the  tendency  to  give  them  room  to  perpetrate  fraud  or  impc^sition 
upon  their  patrons. 

'""Kilev  V.  West.  U.  Tel.  Co.,  109  X.  Tel.  Co.,  IS  Md.  341,  SI  Am.  Dec.  607. 
V.  231.  >»=Carland  v.  West.  U.  Tel.  Co.,  118 

'«*Pearsall  v.  West.  U.  Tel.  Co.,  124  Mich.   3C9,  76  N.  W.   762,   74  Am.  St. 

N.  Y.  250,  21   Am.  St.  Kep.  662.  Rep.  394,  43  L.  R.  A.  280. 

"'  Birney  v.  New  York,  etc..  Printing 


404  TELEGKAPH    AND   TELEPHONE    COMPANIES.  [<§,    421 

§  421.     Messages  written  on  blanks  of  another  company — binding. 

It  has  been  held  that  if  the  message  has  been  written,  through  mis- 
take, on  the  blanks  of  another  company,  whose  terms  therein  are 
substantially  the  same  as  those  of  the  first  company,  the  plaintiff  will 
be  bound  by  such  stipulations. ^^^  It  may  be  said  that  the  contract 
for  sending  was  not  made  with  the  first  company,  since  its  name  was 
not  on  the  message  blank,  biit  this  cannot  be  asserted  with  any  effec- 
tive defense.  A  sound  principle  of  the  law  of  contracts  is,  that  if  the 
agent,  through  mistake  of  any  kind,  writes  his  principals  name  in- 
correctly, or  even  uses  that  of  another,  but  it  is  intended  by  him  to 
write  his  principal's  name;  or,  if  the  contract  is  made  for  him  and 
the  same  is  known  by  the  other  party,  but  another's  name  is  inserted 
instead  of  his,  the  contract  will  be  binding,  although  it  shows  on  its 
face  that  it  was  made  between  the  other  parties.  In  such  cases,  where 
the  contracting  parties  are  in  dispute  as  to  the  real  parties,  parol  evi- 
dence may  be  admitted  to  show  this  fact.  The  same  rule  is  applicable 
here.  So,  when  the  message  blank  of  another  company  should,  by 
mistake,  be  mingled  with  those  of  the  contracting  company;  or,  if 
this  blank  is  used  for  the  message  sent,  but  the  contract  is  with  the 
company  in  whose  possession  they  have  become  carelessly  throAvn, 
the  stipulations  and  conditions  contained  therein,  which  are  substan- 
tially the  same  as  those  on  its  own  blanks,  will  be  binding  on  the  ]>a- 
tron.  It  has  not  been  decided,  to  our  knowledge,  as  to  whether  any 
stipulation,  other  than  such  as  are  substantially  the  same  as  those 
contained  in  the  company's  own  foi-ms,  would  be  binding  on  the 
sender,  but  we  think  that  only  such  as  are  substantially  the  same 
would  be  binding;  nor  do  Ave  think  that  stipulations  contained  in 
these  forms,  used  by  mistake  and  not  in  those  of  the  contracting 
company,  would  be  binding.  All  the  regulations  of  these  companies 
must  be  adopted  by  its  proper  officers,  at  legally-called  meetings  for 
that  purpose.  Stipulations  in  other  companies'  forms,  differing  sub- 
stantially from  those  of  the  contracting  company,  or  which  are  not 

''MA'est.   U.  Tel.   Co.  v.  Waxelbaum,  519;  Clement  v.  West.  U.  Tel.  Co..  137 

113    Ga.    1017,    56   L.   R.    A.    741n,    39  Mass.  463;  Young  v.  West.  U.  Tel.  Co., 

S.   E.    443;    United   States   Tel.    Co.   v.  65  S.  C.  9.3,  43  S.  E.  448. 
Gildersleeve,  29  Md.  232,  96  Am.  Dec. 


<^    422]  COM-MOX    LAW    LI  Uill.I  TIES.  ^OTi 

contained  therein  at  all,  have  not  been  adopted  in  any  manner  by  this 
com]iany,  and  cannot,  therefore,  lie  enforced  1)V  or  aiiain^^t  it. 

§  422.     Same  continued — knowledge  of  company's  stipulations. 

it  must  be  remenihered^  however,  that  where  ulher  eijinpaiiies 
forms  are  used,  the  sender  must  have  had  knowledge  of  the  terms 
of  the  conditions  containecl  in  those  of  the  company,  before  they  be- 
come binding  on  liim;^^"*  fOr,  almost  the  same  rule,  in  regard  to  mes- 
sages being  on  blank  paper,  is  applicable  in  these  cases.  If  the  con- 
ditions on  these  blanks  were  identically  the  same  in  every  respect,  we 
think  this  would  not  be  the  case ;  but  if  they  arc  similar  in  nature, 
the  comjjliance  of  each  only  being  different,  the  knowledge  which  the 
sender  may  have  of  those  contained  in  one  could  not  be  asserted 
against  him  in  the  use  of  the  other.  For  instance,  the  stipulation  in 
regard  to  the  time  within  which  claims  must  be  presented  to  the  com- 
pany may,  and  generally  does,  vary  in  the  different  forms,  as  to  the 
length  of  the  limitation.  Some  of  these  stipulations  require  the 
claims  to  be  presented  within  ninety  days  after  the  message  shall 
have  been  filed  for  transmission,  and  others  limit  the  time  to  sixty 
and  some  to  thirty  and  others  to  twenty  days.  So  it  will  be  seen  that 
the  nature  of  these  conditions  is  similar,  yet  the  compliance  of  each 
is  different ;  and  a  knowledge  of  the  condition  of  the  terms  of  a  stip- 
ulation, in  tliis  resi)ect,  could  not  be  ascertained  from  the  stipulation 
contained  in  a  blank  form  not  used  by  the  company.  The  sender 
would  not,  however,  be  placed  in  the  same  position  if  he  should  write 
the  message  on  a  blank  piece  of  paper.  In  using  the  forms  of  another 
company  he  would  be  referred  (and  it  is  presumed  that  he  followed 
(»ut  this  reference)  to  sufficient  evidence  on  the  face  of  the  message 
blank  which  would  ])nt  liini  on  inquiry  to  ascertain  the  true  facts 
of  the  condition  of  terms  in  the  company's  blank;  but  of  this  evi- 
dence he  is  de])rived  when  merely  using  the  blank  ]iaper.  We  think 
that  this  rule  sliouM  be  more  partic-uhirly  aiq>lied  to  cases  where  it 
is  known  by  the  sender  that  the  blanks  are  those  of  another  com- 
])any;  and  yet  t1ii>  is  not  absolutely  necessary  to  make  it  applicable. 

""'Pearsall  v.  West.  U.  Tel.  Co..  124  442,  5  L.  Yl.  A.  515,  15  Am.  St.  Rep. 
X.  Y.  25.;.  21  Am.  St.  Rop.  Gf.2 :  West.  CST ;  West.  I'.  Tel.  Co.  v.  liinkle,  3 
V.   Tel.   Co.   V.   Stevenson.    120   Pa.   St.        IVx.  Civ.  App.  518. 


406  TELEGRAPH   AND   TELEPHONE   COMPANIES.  [^    422 

It  is  generally  the  rule  of  these  companies  that  its  own  blanks  shall 

be  used  by  parties  employing  their  services,  and  that  the  operators 

shall  not  accept  any  message  written  on  other  than  their  own  blanks ; 

this  will  be  the  case  although  the  sender  was    ignorant    of    such    a 
rule.^s5 

§  423.     Messages  delivered  to  company  by  telephone  or  verbally. 

As  has  been  said,  the  sender  must  have  had  actual  notice  of  the 
terms  of  the  stipulations  of  the  company,  in  order  for  them  to  be 
binding  on  him,  and  it  is  presumed  that  he  had  this  notice  when  he 
attached  his  signature  to  the  message  blanks.  It  is  only  when  these 
forms  are  not  used  that  this  question  is  generally  litigated.  For  in- 
stance, this  question  has  come  up  where  the  message  was  accepted  by 
the  company  by  telephone,  or  when  orally  given  to  its  operator.  It 
has  been  held  in  these  cases  that  if  the  sender  has  actual  knowledge 
of  the  terms  of  these  stipulations,  at  the  time  the  message  was  so  given 
to  the  company,  he  will  be  bound  by  them ;  and  that  this  knowledge 
is  a  question  of  fact  to  be  determined  by  the  jury  from  the  evidence 
adduced  on  this  point. ^^^  It  was  attempted  to  be  shown  in  some  of 
these  cases  that  the  company's  operator,  when  receiving  the  message 
over  a  telephone,  was  acting  as  agent,  in  that  particular  matter,  for 
the  sender,  and  that  the  operator's  knowledge  of  the  terms  of  these 
conditions  was  knowledge  of  the  sender;  but  this  was  held  not  to  be 
the  case.^^'''  The  question  has  also  come  up  in  such  eases  as  to  wheth- 
er it  was  the  object  of  the  company  to  relieve  the  sender  of  these  stip- 
ulations; but  it  was  also  held  that  this  was  a  question  of  fact  to  be 
left  to  a  jury.^^^ 

§  424.     Principal  bound  by  the  knowledge  of  the  agent. 

It  is  a  general  law  of  agency  that  the  principal  is  bound  by  all  the 
acts  of  his  agent  which  fall  either  within  the  scope  of  his  express 
authority  or  that  of  his  apparent  authority;  and  any  knowledge  of 

'<^  Beasley  v.   West.   U.   Tel.   Co.,   39  R.  A.  280,  76  N.  W.  762. 

Fed.  181 ;  West.  U.  Tel.  Co.  v.  Arwine,  ^  Id. 

.S  Tex.  Civ.  App.  156,  22  S.  W.  105.  "'West.  U.  Tel.     Co.  v.     Stevenson, 

^Garland  v.  West.  U.  Tel.  Co.,  118  128  Pa.  St.  442,  18  Atl.  441,   15  Am. 

Mich.  .360,  74  Am.  St.  Rep.  394,  43  L.  St.  Rep.  687,  5  L.  R.  A.  515. 


<§,    424]  COMMON  LAW  LIABILITIES.  407 

facts  pertaining  to  such  acts  coining  to  the  agent  while  exercising  this 
authority,  is  presumed  to  have  been  known  by  the  principal,  and  he 
is  therefore  bound  by  such  knowledge.  It  therefore  follows  that,  if 
the  sender  of  a  message  is  acting  for  the  receiver,  as  his  agent  and  he 
has  knowledge  of  the  terms  or  conditions  contained  in  the  message 
blanks,  the  receiver  is  bound  by  all  these  stipulations,  although  he, 
himself,  was  ignorant  of  thera.^^^  There  is  an  exception  to  this  rule, 
however,  as  said  elsewhere,  brought  about  by  the  position  in  which 
the  receiver  may  stand.  For  instance,  the  sender  may  be  acting  as  the 
receiver's  agent  in  this  particular  matter,  without  the  latter  having 
any  knowledge  of  this  fact,  and  the  message  may  be  delivered  to  the 
company  but  never  transmitted ;  or,  the  company  may  fail  to  deliver 
it  after  it  has  been  transmitted.  Unless  the  receiver  knew  these  facts 
he  would  not  be  bound  by  these  stipulations.  If  the  agent  acts  on 
any  occasion,  in  the  capacity  of  such,  although  it  is  for  that  parti- 
cular matter,  and  he  knows  of  the  terms  of  these  stipulations,  the 
principal  will  be  bound  by  them.  So,  where  the  operator  fills  out  one 
of  these  blanks  at  the  request  of  the  sender,  the  latter,  upon  attaching 
his  signature  thereto,  is  bound  by  the  stipulations,  notwithstanding 
his  failure  to  notice  them  ;^^*'  or,  if  the  message  is  written  out  by  tin.' 
sender  on  a  blank  piece  of  paper,  and  given  in  this  manner  to  the 
operator  who  transcribes  it  on  these  forms  and  reads  the  stipulation 
therein  to  the  sender  without  his  objecting  to  them,  he  will  be  bound 
by  them.^^^  The  operator  acts  in  these  cases  in  the  capacity  of  agent 
for  the  sender.  It  is  otherwise,  however,  if  the  sender  does  not  see 
and  does  not  sign  or  otherwise  agree  to  these  conditions. ^^^  And  if 
th  message  is  written  on  blank  paper  by  the  sender  and  delivered  in 
this  style  to  the  operator,  who  attaches  it  to  one  of  these  message 
blanks  without  the  authority  of  the  sender,  the  latter  will  not  be 

"•Clement  v.  West.  U.  Tel.  Co.,  137  «^  West.    U.    Tel.    Co.    v.    Phillips,    2 

Mass.  463;   Coit  v.   West.   U.  Tel.   Co..  Tex.  Civ.  App.  608,  21  S.  W.  638. 

130  Cal.  057,  SO  Am.  St.  Rep.   153,  53  '"West.   U.   Tel.    Co.   v.    Uvalde   Xa- 

L.  E..A.  678,  63  Pac.  83.  tional    Bank,    72    S.    W.      (Tex.)    232: 

'•*West.   U.   Tel.   Co.   v.    Edsall,    03  Beasley  v.  West.  U.  Tel.  Co.,  39  Fed. 

Tex.  668;  Gulf,  etc.,  R.  Co.  v.  G«er,  5  181;    West.  U.  Tel.  Co.  v.   Powell.  04 

Tex.  Civ.  App.  349,  24  S.  W.  86;  West.  Va.  268,  26  S.  E.  826. 
U.  Tel.  Co.  V.  Henderson,  89  Ala.  510, 
IS   Am.   St.   Rop.    148,   7   So.   419. 


408  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [§    424 

boinid  by  these  stipulations,  if  lie  bad  no  knowledg-c  of  tbem  \'^^^  and 
it  is  bis  duty,  when  the  company  attempts  to  bind  bini  by  tbeir  terms, 
to  plead  and  prove  non  est  factum.^^^  It  sbould  be  borne  in  mind 
that  if  the  plaintiff  ascertains  a  knowledge  of  the  terms  of  the  stip- 
ulations or  regulations  of  the  company,  as  they  appear  on  the  message 
blanks  furnished  by  them  through  his  agent  or  otherwise,  and  he  as- 
sents to  them,  he  will  be  bound ;  but  this  knowledge  must  be  brought 
to  the  mind  of  the  plaintiff  or  his  agent,  while  acting  as  such  to  the 
knowledge  of  the  former. 

'*' Harris  v.   West.   U.   Tel.   Co.,    121  (Tex.)    78;   Anderson  v.   West.  U.  Tel. 

Ala.  519,  25  So.  910,  77  Am.   St.  Rep.  Co.,  84  Tex.   17,  19  S.   W.  285. 

70;    West.  U.   Tel.   Co.   v.   Shumate,   2  '^  West.  U.  Tel.  Co.  v.  Hayes,  63  S. 

Tex.  Civ.  App.    429,    21    S.    W.    109;  W.   (Tex.)    171. 
West.  U.  Tel.  Co.  v.  Pruett,  75  S.  W. 


CHAPTER  XVIII. 

LIABILITY    OF    COMPANIES    IN    PARTICULAR    CLASSES    OF 
CASES— CONTRACT    TO    FURNISH    MARKET 
REPORTS   AND   OTHER  NEWS. 

§  425.    In  general. 

426.  Market  reports,  etc. 

427.  Same  continued— organized  for  collecting  news. 

428.  Gambling  transactions— messages   in   regard   to. 

429.  Indecent  language  not  bound  to  accept. 

430.  Liable  civilly  or  criminally- indecent  language. 

431.  Libel— liable  for. 

432.  Interstate  messages. 

433.  Recover  of  statutory  penalty— not  applicable. 

434.  Sunday  Messages— no  duty  to  send. 

435.  Sunday  contracts— void. 

436.  Same  continued— matters  of  necessity  or  charity. 

437.  Same  continued— illustrations. 

438.  Statutory  penalty— applicable. 

439.  Action  of  tort— rule  not  applicable. 
440     Forged  and  fraudulent  messages. 

44l'  Same  continued-negligence  must  be  proximate  cause. 

442.  Same  continued-operator  author  of  forged  message. 

443  Same  continued— sub-agent,  forgery  of. 

444.  Same  continued— no  bar  to  action  ex  delicto. 

445.  Amount  of  damages. 

446.  Connecting  lines-passage  over-initial  line-general  rule. 

447.  Same  continued— English  rule. 

448  Accept  all  the  charges— rule  not  changed. 

449  Initial  company-diligence  to  deliver  to  other  Ime. 

450.  Same  continued— telephone-same  rule  applied. 

451.  Special  contract— may  become  liable  by. 
452     Same  continued— who  may  contract. 

453'  Where  statutes  make  the  initial  carrier  liable. 

454.  Actions   on   extra-terminal   contracts-against   whom. 

455.  Connecting  lines. 

456.  Same  continued-duty  to  accept  messages  tendered. 

457.  Same  continued — duty  of. 

458.  Liability  of  connecting  lines. 
459  Burden  of  proof. 

460'    Partnership  arrangements  between  the  several  Imes. 

461.  Effect  of  contract  of  sending  on  connecting  lines. 

462.  Liability  for  defaults  of  common  agent. 

(400) 


410  TELEGRAPH    AND    TELEPHONE    COMPANIES.  [§    425 

463.  Sender's  right  to  select  route. 

464.  Same  continued — result  of  bad  selection — initial    company- 

not  liable. 

465.  Same  continued — exact  extra  fee  or  charges. 

466.  Liability  of  companies  between  themselves — actions. 

§  425.     In  general. 

The  duty  of  telegraph  companies,  with  respect  to  the  nature  of  in- 
telligence to  be  sent,  is  to  transmit  promptly  and  correctly  only  such 
intelligence  as  is  general,  and  that  which  they  are  employed  to  trans- 
mit ;  it  is  not  their  duty  to  collect  and  transmit  news,  unless  a  special 
contract  is  made  to  that  effect.  These  companies  may,  however,  enter 
into  a  special  contract,  for  a  consideration  greater  in  amount  than 
that  charged  for  their  general  services,  to  insure  the  correctness  of  the 
message.^  These  contracts  may  be  of  two  kinds,  and  in  determining 
the  liability  of  the  company  this  fact  should  be  considered,  since  they 
may  be  liable  under  one  and  not  under  the  other.  For  instance,  the 
company  may  contract  to  insure  a  safe  transmission  of  messages  as 
delivered  to  it;  or,  it  may  insure  the  correctness  of  the  intelligence 
sent.  In  other  words,  these  companies  may  contract  to  insure  the 
correctness  in  the  transmission  of  a  message,  and  assume  all  hazards 
with  which  it  may  come  in  contact,  which  gives  them  the  qualities 
of  a  common  carrier;  or,  they  may  assume,  under  a  special  contract, 
even  a  greater  responsibility  than  that  of  merely  insuring  a  correct 
transmission,  by  contracting  to  transmit  the  correctness  of  the  intel- 
ligence. Under  the  latter  contract,  they  must  not  only  transmit  ac- 
curately and  correctly,  but  the  other  contracting  party  is  guaranteed 

'Good.sell   V.   West.   U.  Tel.   Co.,   130  places  for  those  named;  and,  if  the  re- 

N.   Y.  430;    West.   U.  Tel.  Co.  v.  Ste-  ports  were  transmitted  to  "any  great- 

vcnson,   128   Pa.   St.  442,   18  Atl.  441,  er  number  of  places"  than  were  enum- 

15  Am.  St.  Rep.  687,  5  L.  R.  A.  515.  erated  in  such  schedule,  then  an  addi- 

In   the   first  case,   it  appeared   that   a  tional  payment  should  be  made.     The 

telegraph  company  contracted  to  deliv-  schedule  contained  38  difTerent  places, 

er  certain  news  reports  of  an  average  It    was    held    that    the    company    was 

number  of  words  per  day,  one-third  to  bound,  without  additional  payment,  to 

be   transmitted    in    the    day    time    and  transmit  the  day  reports  to  38  places 

two-thirds   at   night,   to   all   the   places  and  the  night  reports  to  38  places,  al- 

named  in  a  certain     schedule,     for   a  though  the  latter  places  were  different 

gross  sum  per  month,  the  other  party  from  the   former, 
to   have   the   right   to   substitute   other 


^    427]  LIABILITY   IN    PAKTICULAR   CASES.  411 

or  insured  that  the  intelligence  was  correctly  collected  or  received  by 
the  company,  before  its  transmission ;-  and,  it  is  the  latter  kind  we 
next  discuss. 

§  426.     Market  reports,  etc. 

Contracts  whereby  telegraph  companies  agree  to  insure  the  correct- 
ness of  the  intelligence  sent  are  generally  such  as  are  made  to  fur- 
nish market  reports,  stock  quotations  and  other  like  news.  In  such 
contracts  as  these.,  it  becomes  the  duty  of  these  companies  to  collect 
the  news  and  then  to  transmit  it  to  the  other  party  ;and  an  error  made 
in  either  part  of  this  transaction,  whereby  the  other  party  suffers, 
will  render  the  company  liable  for  damages.  These  contracts  are 
extraordinary  in  their  nature,  and  become  much  greater  in  their  per- 
formance than  those  ordinarily  made  in  the  general  course  of  these 
companies'  public  duties.  It  follows,  of  course,  that  the  consideration 
given  in  return  for  the  extra  hazard  assumed  should  be  much  gi-eater 
and  it  seems  that  the  contracts  should  be  more  strictly  construed  than 
those  made  in  the  ordinary  manner.  The  position  has  been  taken  in 
some  of  the  cases  arising  out  of  these  contracts,  that  these  companies 
should  not  be  liable  where  the  message  w^as  incorrectly  given  to  them, 
and  which  was  no  fault  on  their  part;  but  it  is  generally  held  that 
they  become  as  liable  for  an  error  made  in  one  part  of  the  transaction 
as  that  made  in  the  other;  in  fact,  the  receiving  or  collection  of  the 
news  is  the  more  responsible  part  of  their  undertaking.  So,  they 
should  be  held  for  errors  made  in  the  collection  of  the  news  independ- 
ent of  the  question  as  to  how  the  error  was  made.^ 

§  427.     Same  continued — organized  for  collecting  news. 

In  some  instances,  telegraph  companies  are  organized  for  the  ex- 
press purpose  of  collecting  news,  but  when  this  is  the  case  they  are 

^  Gray   on   Tel.   31.  indicator   in   their  office  in   New  York 

"Gray  on  Tel.  31;  Turner  v.  Hawk-  from  which  they   received  their  infor- 

eye  Tel.  Co.,  41  Iowa  458,  20  Am.  Rep.  mation.     It  was  held  that  this  did  not 

605;    Bank   of   New   Orleans   v.    West.  release  them  from  liability,  since  they 

U.  Tel.   Co.,  27  La.  Ann.   49.     In  this  had   contracted  to  deliver  to  plaintitls 

last    case    the    company's    defense    was  correct  information  which  they  should 

that  the  error  in  the  reports  was  cans-  have  obtained,   without    relying   wholly 

("U    bv    the    workiii!.'    of    the    "old    stock  (in  the  indicator. 


412  TELEGKAl'II  AXJ)   TEl^Kl'lIOXE   COMPAXIES.  [§    427 

possessed  of  the  sniiie  general  poAvers,  and  snl)j('('t  to  the  same  obli- 
gations, as  oi'dinarv  telegraph  companies.  Thns,  they  may  adopt 
and  enforce  reasonable  rules  and  reiziilations  with  res])ect  to  the  use 
of  their  instrnments,  and  provide  that  the  messages  shall  not  be  given 
out  to  non-subscribers.  It  is  generally  i)rovided  in  these  contracts 
made  with  subscribers,  that  "these  reports  are  furnished  to  subscrib- 
ers for  their  own  private  use  in  their  own  business  exclusively.  It 
is  stipulated  that  subscribers  will  not  sell  or  give  up  copies  of  the 
reports  in  whole  or  in  part,  nor  permit  any  outside  party  to  copy 
them  for  use  or  publication.  Under  this  rule,  subscriptions  by  one 
party  for  the  benefit  of  himself  and  others  at  their  joint  expense  will 
not  be  received."^  It  has  been  held  that  these  stipulations  were  rea- 
sonable and  did  not  conflict  with  any  duty  the  company  owed  to  the 
public.  And  it  has  been  further  held  that  if  the  subscriber  should 
furnish  such  report  to  another  firm  of  which  he  was  a  member,  the 
company  would  be  justified  in  removing  its  machine  from  his  office.^ 
These  companies  are  exercising  a  public  function  and  must  therefore 
perfomi  such  duties  as  are  imposed  upon  other  orporations  of  a 
public  character.  They  cannot,  therefore,  discriminate  between  their 
subscribers,  but  are  under  obligation  to  discharge  their  duties  to  one 
the  same  as  to  an  other,  and  may  be  enjoined  from  refusing  to  con- 
tinue sei^ving  a  subscriber  who  has  complied  with  all  their  reasonable 
regulations.^  They  are  not,  however,  under  any  obligation  to  fur- 
nish these  rej^orts  to  a  gambling  place,  although  they  may  have  con- 
tracted to  do  so,  as  they  can  be  under  no  obligation  to  further  an  il- 
legal undertaking.'^ 

*  Shepard  v.  Gold.,  etc.,  Tel.  Co.,  38  l)nsiiioss,  and  Avithoiit  the  prompt  sup- 
Hun     (N.  Y.)    338.                                   .^  ])ly  of  which,  his  business  was  a  fail- 

"  Id.  mo.     Can  the  appellee  be  compelled  to 

'Friedman   v.   Gold.,     etc.,   Tel.     Co.,  to  continue  the  supply?    We  think  not. 

32    TTun      (X.   Y.)    4;    Smith    v.    Gold,  Xnt   upon   the  ground   that   the   appel- 

etc,   Tel.   Co.,   42   Hun     (N.   Y.)    454;  Ice    is    the    innocent    victim    of    an    il- 

Metropolitan,  etc.,  Ex.  v.  Mut.  U.  Tel.  le<ial  enterprise;   not  tliat   it  has  been 

Co.,   11  Biss.    (U.  S.)    531;   Bradley  v.  entrapped  into  aiding  a  gambling  busi- 

We.st.   U.   Tel.   Co.,   27  Alb.  L.   J.   363.  ness,  for  it  says  that  it  was  willing  to 

'  Tn   Smith  v.  West.   U.   Tel.  Co.,  84  furnish    the    reports   as      long   as     the 

Ky.  064,  2  S.  W.  483,  the  court,  said:  terms    of   the    contract    suited   it;    but 

"Tliese    reports    were    the-  essence,    the  u))on    the    ground    that    appellant    wa^ 

very   sinew,   of     appellant's     gambling  engaged     in     a     gambling     enterprise. 


§  428] 


LIABILITY   IN'   I'ARTICUI-Ali   CASKS. 


4i: 


§  428.     Gambling  transactions — messages  in  regard  to. 

While  a  tclcgrii])!!  coiiipniiv  may  not  refuse  to  transmit  or  deliver 
messages  relating  to  "futures"  or  similar  gambling  transactions,  or  es- 
cape a  statutory  penalty  for  failing  to  transmit  such  messages  yet  the 
amount  of  damages  to  be  recovered  for  an  error  made  in  the  transmis- 
sion of  such  are  only  nominal  and  cannot  exceed  the  amount  paid  for 
tlioir  transmission.  Tliere  is  a  distinction  between  real  gambling, 
and  dealing  in  what  is  ooiniiionly  called  "futures;"^  and  this  distinc- 


whicli  is  contrary  to  law,  good  morals, 
and  public  policj'.  It  is  for  the  sake 
of  the  law  and  the  best  interests  of  so- 
ciety that  we  relieve  tiie  appellee  from 
continuing  to  furnish  to  appellant  the 
reports.  The  appellant  is  engaged  in 
running  a  "bucket  shop." 

*  In  Kirkpatrick  v.  Bonsall,  72  Pa. 
St.  155,  the  court,  said:  "We  must  not 
confound  gambling,  whether  it  be  in 
corporate  stocks,  or  merchandise,  with 
what  is  commonly  termed  speculation. 
Merchants  speculate  on  the  future 
prices  of  that  in  which  they  deal,  and 
buy  and  sell  accordingly.  In  other 
words,  they  think  of  and  weigh — that 
is,  speculate  upon — the  probabilities 
of  the  coming  market,  and  act  upon 
this  lookout  into  the  future  in  their 
business  transactions;  in  this  they  of- 
ten exhibit  high  mental  grasp  and 
great  knowledge  of  business,  and  of  the 
affairs  of  the  world.  Their  speculations 
display  talent  and  forecast,  but  they 
act  upon  their  conclusions  and  buy  and 
sell  in  a  bona  fide  way.  Such  specula- 
tion cannot  be  denounced.  But  when 
ventures  are  made  upon  the  terms  of 
prices  alone,  if  no  bo)ia  fide  intent  to 
deal  in  the  article,  but  moi-ely  to  risk 
the  difference  between  the  rise  and  fall 
ot  its  price;  no  money  or  capital  is 
invested,  in  the  purchase,  but  so  much 
only  is  required  as  will  cover  the  dif- 
ference— a  margin,  as  it  is  figuratively 
termed — then    the    bargain    represents. 


not  a  transfer  property,  but  a  mere 
slake  or  wager  upon  its  future  jirice. 
The  difference  requires  the  ownership 
of  only  a  few  hundred  thousands  of 
dollars,  while  the  capital  to  complete 
an  actual  purchase  or  sale  may  be 
hundreds  of  thousands  or  millions. 
Hence,  ventures  upon  prices  invite  men 
of  small  means  to  enter  into  transac- 
tions far  beyond  their  capital,  which 
they  do  not  intend  to  fulfill,  and  tiius 
tlie  apparent  business  in  the  particular 
Irado  is  inflated  and  unreal,  and,  like 
a  bubble,  needs  only  to  be  pricked  to 
disappear  often  carrying  do^^^l  the 
boiii  fida  dealing  in  its  collapse.  Worse 
even  than  this,  it  tempts  men  of  large 
capital  to  make  bargains  of  stupend- 
ous proportions  and  then  to  mani- 
pulate the  market  to  produce  the  de- 
sired price.  This,  in  the  language  of 
gambling  speculation,  is  making  a  cor- 
ner; that  is  to  say,  the  article  is  so  en- 
grossed or  manipulated  as  to  make  it 
scarce  or  plenty  in  the  market  at  the 
will  of  the  gamblers,  and  then  to  jilace 
its  price  within  their  power.  Such 
transactions  are  destructive  of  good 
morals  and  fair  dealings,  and  of  the 
best  interest  of  the  connnunity.  If  the 
articles  be  stock,  corporations  are 
crushed  and  innocent  stockholders  ruin- 
ed to  enable  the  gambler  in  its  price  to 
accomplish  his  end.  If  it  be  merchan- 
dise, e.  g.,  grain,  the  poor  are  robbed 
and    iiiisorv    engendered." 


414  TELEGKAPH   A^^D    TELEPHONE    COMPANIES.  [§    428 

tion  gives  those  dealing  in  the  latter  a  right  similar  to  that  enjoyed 
in  the  transmission  of  ordinary  messages.  It  is  presumed  in  the 
"future"  contracts,  that  there  is  to  be  a  delivery  of  the  goods;®  but  in 
gambling,  there  is  a  wager  outright  for  a  loss  or  a  gain.^*^  These  com- 
panies are  under  no  obligations  to  accept  messages  for  transmission 
-which  are  purely  gambling  messages,  for,  to  do  so,  would  be  contrary 
to  law,  good  morals,  and  public  policy.  But  it  seems  that  there  is  no 
laudable  reason  why  they  should  refuse  to  transmit  messages  relating 
to  "futures,"  where  that  class  of  business  has  not  been  prohibited  by 
statute,  although  it  may  be  a  species  of  gambling.  While  they  are 
not  gambling  contracts,  yet  they  are  very  speculative  and  uncertain 
and  for  this  reason  the  failure  to  correctly  and  promptly  transmit 
them  only  lays  the  company  liable  for  nominal  damages. ^^  We  shall 
discuss  later  the  rights  of  a  party  to  recover,  as  a  part  of  his  dam- 
ages, future  profits;  but  suffice  it  to  say  here,  that  only  such  dam- 
ages can  be  recovered  for  the  breach  of  a  contract  as  was  contemplated 
by  the  parties  at  the  time  of  making  the  contract,  or  such  as  would 
flow  directly  and  proximately  from  such  breach.  It  is  universally 
held  that  the  profits  to  be  made  in  "future"  contracts  do  not  fall  with- 
in this  rule,  and  are  not,  therefore,  recoverable  for  losses  occurring  in 
the  failure  to  transmit  or  deliver  correctly,  such  messages.  ^^  Fur- 
thermore, the  "future"  contract  may  be  illegal  and  void  with  respect 
to  the  parties  making  it,  and  thereby  unenforcible  by  either  of  them. 
So,  neither  could,  therefore,  invoke  it  as  a  basis  for  the  recovery  of 

•Fortenbury   v.    State,   47   Ark.    188:  Fed.  825;  Colin  v.  West.  U.  Tel.  Co.,  46 

1    S.    W.    58;    Pexley   v.    Baynton,    79  Fed.  40,  affirming    (C.  C.  A.)    48  Fed. 

111.      351;      Tomblin      v.      Calen,      69  810;    Smith  v.    West.   U.   Tel.   Co.,   84 

Iowa    229;     28   N.     W.    573;     Conner  Ky.  664,  2  S.  W.  483;  Morris  v.  West. 

v_  Robinson,  37  La.  Ann.  814,  55  Am.  U.  Tel.   Co.,   94  Me.   423,  47  Atl.   926; 

Rep.     521;     Clay     v.     Allen,     63  Mo.  West.  U.  Tel.  Co.  v.  Harper,   15  Tex. 

426;    Kingsbury  v.  Kerwan,   77  N.  Y.  Civ.  App,  37;  West.  U.  Tel.  Co.  v.  Hall, 

602;  Irwin  v.  Williar,  110  U.  S.  499;  124   U.   S.   444;    West.  U.   Tel.   Co.   v. 

Smith  V.  Bouvier,  70  Pa.  St.  325;  Ap-  Littlejohn,  72  Miss.  1025,  18  So,  418. 
pieman  v.  Fisher,  34  Md.  540.  '^  Cothran  v.   West.   U.   Tel.   Co.,   83 

"Fortenbury  v.  State,  47  Ark.    188,  Ga.  25,  9  S.  E.  836,  overruling  West. 

1    S.    W.    58;    Whiteside   v.    Hunt,    97  U.   Tel.   Co.  v.   Blanchard,   83   Ga.   25, 

Ind.    191,   49   Am.   Rep.   441;    Clay   v.  in  this  respect.     See  also  Melchert  v. 

Allen,  63  Miss.  426.  American  U.  Tel.  Co.,  11  Fed.  194. 

"Bryant  v.  West.  U.     Tel.  Co.,     17 


§    429]  LIABILITY   IN    PARTICULAIt   CASES.  415 

substantial  damages.  ^^  It  seems,  however,  that  wliere  the  action 
against  the  company  is  to  recover  the  statutory  penalty,  the  company 
cannot  defend  on  the  ground  that  the  message,  which  it  was  negli- 
gent in  transmitting,  related  to  a  gam])ling  transaction.'"* 

§  429.     Indecent  language  not  bound  to  accept. 

Telegraph  companies  are  not  under  obligation  to  accept  any  mes- 
sage for  transmission  which  would  subject  them  to  an  indictment  or 
to  a  civil  action,  and  any  message  which  is  indecent,  obscene  or  fil- 
thy on  its  face,  may  be  rejected  by  them.  But  in  order  for  the  com- 
pany to  take  advantage  of  this  right,  the  contents  of  the  message 
should  be  couched  in  such  indecent  language  as  to  show  on  its  face 
this  fact;  because,  if  it  is  ambiguous,  or  if  there  is  doubt  of  its  in- 
decency, the  sender  should  have  the  benefit  of  the  doubt.  The  reason 
of  this  is,  that  where  a  dispatch  is  ambiguous,  the  law  gives  the  ben- 
efit of  the  ambiguity  to  the  company  dealing  with  it,  when  sued  either 
civilly  or  criminally  for  transmitting  the  message;  and  it  would 
therefore  be  the  duty  of  the  company,  in  deciding  whether  to  trans- 
mit, to  give  the  benefit  of  the  doubt  to  the  sender.^^  Thus,  in  the 
message,  ''send  me  four  girls  on  first  train  to  Francesville,  to  attend 
fair,"^^  it  was  attempted  to  bo  shown  that  the  company  was  not  lia- 

"Melchert  v.  Am.  U.  Tel.  Co.,  11  ject  matter,  unless  by  sending  it.  the 
Fed.  194;  Cothran  v.  West.  U.  Tel.  Co.,  company  would  or  might  subject  itself 
83  Ga.  25,  9  S.  E.  836.  The  burden  or  its  servants  either  to  indictment  or 
of  proof  is  on  the  company  to  show  civil  action.  This  is  a  rational  test  and 
that  the  message  related  to  a  "future"  one  that  may  fairly  be  presumed  to  co- 
contract:  West.  U.  Tel.  Co.  v.  Hill,  65  incide  with  legislative  intention.  Now, 
S.  W.  (Tex.)  1123;  Hocker  v.  West.  in  this  state,  it  is  neither  a  crime  nor 
U.  Tel.  Co.,  34  So.    (Fla.)   901.  a  tort  to  speculate  in  futures.     It  is  a 

'*  Under  the   Georgia   statute    which  gross    immorality,    and    conflicts    with 

requires     that     telegraph      companies  the  public  policy;  but  it  is  not  indict- 

should   receive     all   dispatches     either  able   nor   actionable."     Gray   v.    West, 

from   other  lines   or  from   individuals,  U.   Tel.   Co.,   87   Ga.   350,  27   Am.   St. 

and  "shall  transmit  the  same  with  im-  Rep.   259,    14   L.   R.   A.    95;    West.   U. 

partiality    and    good    faith,    and    with  Tel.  Co.  v.  Ferguson,  57  Ind.  495. 

due  diligence  under   penalty   of,"   etc.,  "Gray  v.  West.  U.  Tel.  Co..  87  Ga. 

the  court  holds  that  a  telegraph  com-  350,  27  Am.  St.  Rep.  259,  14  L.  R.  A. 

pany  is  denied  any  power  of  selection  95,  13  S.  E.  562. 

or  discrimination.       "A  dispatch     can-  >"  West.  U.  Tel.  Co.  v.  Ferguson,  57 

not  be  reject^'d  on  account  of  its  sub-  Ind.  495. 


416  TELEGRAPH   A^T)    TELEPHOI^E    COMPAXIES,  ["§.    420 

ble  for  a  failure  to  transmit  this  message,  on  the  ground  that  its  ob- 
ject was  indecent,  in  that  its  pui*pose  was  to  have  prostitutes  attend 
the  fair;  but  the  court  held  that  the  language  of  the  message  was 
ambiguous  and  that  the  plaintiff  should  have  had  the  benefit  of  the 
ambiguity.-^"  The  amount  of  damages  to  be  recovered  for  an  eiTor 
made  in  the  transmission  of  such  messages  is  the  same  as  that  to  be 
recovered  in  a  similar  error  made  in  a  message  relating  to  "fu- 
tures,"^^  and  is  founded  on  the  groimd  that  the  message  is  for  an  un- 
lawful purpose,  or  an  attempt  to  accomplish  something  in  an  illegal 
manner. 

§  430.     Liable  civilly  or  criminally — indecent  language. 

It  is  not  the  object  of  the  law  to  impose  upon  these  companies  the 
duty  to  transmit  any  message  which  would  subject  them  to  a  civil 
or  criminal  action,  and  any  message  whose  object  is  to  accomplish 
such,  may  be  rejected  by  the  company. ^^  But  it  is  not  every  message 
whose  object  is  illegal  which  will  subject  the  company  to  a  liability ; 
and,  if  there  is  any  doubt  of  its  illegal  purpose,  the  doubt  must  be  con- 
strued in  favor  of  the  company.^^  Thus,  it  has  been  held  that  these 
companies  will  not  be  held  indictable,  as  being  guilty  of  maintain- 
ing a  common  nuisance,  for  transmitting  information  concerning 
horse  races  to  a  pool  room,  although  it  appears  that  the  place  is  re- 
sorted to  by  idle  and  evil-disposed  persons,  for  selling  pools  and  bet- 
ting on  races,  to  the  common  annoyance  of  all  good  citizens  of  the 
neighborhood.^^ 

"See  notes  15  and  16  for  eases.  able   offense   at  common   law,   and   one 

^*  See  §  428.  who   leases    a    house    with   the   knowl- 

"West.  U.   Tel.   Co.  v.   Ferguson,   57  edge  that  it  will  be  used  for  that  pur- 

Ind.  495.     In  Pugh  v.  City,  etc.,  Tel.  pose   is    subject   to   an    indictment:     9 

Co.,    27    Alb.    L.    J.    163,    it   was   held  Am.  &  Eng.  Ency.  of  Law,  2  Ed.  527. 

that  a  telephone  company  may  provide  A   telephone   company   could   refuse   to 

that  no  indecent  or  profane  language  furnish   such   a   house   with  telephonic 

shall  be   used   over   its   line   and   may  facilities:    Godwin  v.  Tel.  Co.,   136  N. 

refuse  to  serve  a  subscriber  who  uses  Car.   258,   48   S.   E.   636,   103  Am.   St. 

such  language  in  speaking  throu<;li  its  Rep.  741,  67  L.  R.  A.  251. 

line.    In  this  case  the  subscriber,  being  ""  Gray  v.  West.  U.  Tel.  Co.,  87  Ga. 

annoyed  because  unable  to  get  the  num-  350,  27  Am.  St.  Rep.  259,  14  L.  R.  A. 

her   he  wished   call  up,   said:     "If  you  95,  13  S.  E.  562. 

don't  get  that  party  I  Avant,  you  can  -^  Com.  v.   West.   U.   Tel.   Co.,   67   S. 

shut   up   your   damned   old   telephone."  W.   59,   57  L.  R.  A.  614. 

Keeping  a  bawdy-house  was  an  indict- 


<^    431]  LIABILITY   IX    PARTICULAU   CASES.  417 

§  431.     Libel— liable  for. 

Any  means  whereby  a  writing,  wliicii  is  libelous  per  se,  is  commun- 
icated to  the  party  injured,  is  a  publication  of  the  libel.^^  So,  if  a 
message,  which  is  libelous  per  se,  or  if  it  clearly  shows  on  its  face, 
statements  which  would  be  understood  by  a  man  of  ordinary  intelli- 
gence as  being  a  sufficient  gTOund  to  lay  the  Avriter  or  sender  liable 
for  an  action  of  libel,  and  the  company  transmits  such  a  message,  it 
will  be  guilty  of  a  publication  of  the  libel  and  will  be  just  as  liable 
for  damages  arising  out  of  it  as  the  writer  of  the  message  would  be. 
Thus,  where  a  company  accepted  and  transmitted  a  message  directed 
to  the  plaintiff,  reading:  "Slippery  Sam,  your  name  is  pants,"  and 
signed,  "Many  Republicans,"  it  was  held  that  the  message  sufficiently 
indicated  to  the  company  its  libelous  character,  and  that  plaintiff  was 
entitled  to  recover  damages  for  the  libel.-^  And  it  was  held  that  the 
company  was  giiilty  of  publishing  a  libel  by  transmitting  a  message 
stating  that  "the  citizens  of  Wisconsin  demonstrated  you  are  an  un- 
scrupulous liar,"  and  was  liable  for  all  damages  arising  out  of  such 
publication.-^  It  is  generally  hold  that  the  libelous  matter  directed 
to  the  party  defamed,  without  having  been  seen  or  heard  by  any 
other  person,  will  not  support  a  civil  action,-^  but  this  rule  cannot 

-^Alabama,  etc.,  R.  Co.  v.  Brooks,  69  tating  it,  is  a  publication  of  its  con- 
Miss.  1G8,  13  So.  847,  30  Am.  St.  Rep.  tents,  so  as  to  entitle  the  person  to 
528;  Adams  v.  LaAvson,  17  Gratt  250.  Avhoni  it  is  addressed  to  maintain  ei- 
94  Am.  Dec.  455;  Miller  v.  Butler,  0  tlier  libel  or  slander  upon  it,  although 
Cush.  71,  52  Am.  Dec.  768;  Fogg  v.  there  is  no  communication  of  its  con- 
Boston,  etc.,  R.  Co.,  148  Mass.  513,  20  tents  to  any  other  person:  Gambrili 
N.  E.  109,  12  Am.  St.  Rep.  583;  Even-  v.  Schooley,  93  Md.  48,  48  Atl.  730, 
ing  Journal  Assn.  v.  ]\IcDermott,  44  86  Am.  St.  Rep.  420,  52  L.  R.  A.  87; 
N.  J.  L.  430,  43  Am.  Rep.  392;  John-  ilonson  v.  Lathrop,  96  Wis.  386,  71  N. 
son  V.  St.  Louis  Dispatch  Co.,  65  :Mo.  ^^'.  596.  65  Am.  St.  Rep.  54. 
539,  27  Am.  Rep.  293;  Maynard  v.  "Peterson  v.  West.  U.  Tel.  Co.,  65 
Fireman's  Fund  Ins.  Co.,  34  Cal.  48.  Minn.  18,  33  L.  R.  A.  302,  72  Minn. 
91  Am.  Dec.  672.  The  publication  of  41,  40  L.  R.  A.  661.  71  Am.  St.  Rep. 
a  libelous  letter  is  complete  when  it  461,  75  Minn.  3(iS.  74  Am.  St.  Rep. 
is  received  and  read:  McCarlie  v.  At-  502,  43  L.  R.  A.  581. 
kinson,  77  Miss.  594,  27  So.  641,  78  -*  :\Ionson  v.  Lathrop,  96  Wis.  386, 
Am.  St.  Rep.  540.  The  dictation  of  a  65  Am.  St.  Rep.  54,  71  N.  W.  96. 
libelous  letter  to  a  confidential  short-  "  Spails  v.  Poundstone,  87  Ind.  522, 
hand  writer  and  the  copying  of  it  by  44  Am.  Rep.  773;  Wilcox  v.  Moon,  64 
him  on  a  typewriting  machine,  after  Vt.  450.  33  Am.  St.  Rep.  936,  24  Atl. 
which  it  is  signed  by  the  person  die-  244.  15  L.  R.  A.  700. 
T.  &  T.— 27 


418  TELEGRAPH    A>;D    TELEPIIOXE    COMPANIES.  [§    431 

apply  here,  for,  if  a  message  is  sent  to  th(^  pnrtv  defamed  bj  telegi-aph 
the  contents  of  the  telegTam  are  necessarily  communicated  to  all  the 
clerks  through  whose  hands  it  passes.-*'  If,  however,  the  message  is 
couched  in  such  language  as  an  ordinal-  person,  ignorant  of  the  cir- 
cumstances and  knowing  nothing  of  the  parties,  would  not  suppose 
it  to  be  defamatory,  the  company  w^ould  not  be  liable,^^  unless  it  had 
been  informed  of  the  character  of  the  message.  Under  such  circum- 
stances, the  message  may  be  libelous,  and  one  for  which  the  sender 
would  be  liable,  yet  if  the  company  has  no  information  of  its  char- 
acter, or  has  no  means  by  which  it  may  ascertain  this  fact,  it  will  not 
be  liable. ^^ 

§  432.     Interstate  messages. 

A  great  many  cases  have  grown  out  of  suits  brought  to  recover 
damages  for  errors  made  in  the  transmission  of  messages  which  are 
sent  from  one  state  into  another.-^  A  question  which  has  presented 
itself  in  such  cases  is.  Whether  an  action  can  be  maintained  for  a 
breach  of  the  company's  common-law  duty  to  use  proper  care  to  se- 
cure a  correct  and  prompt  transmission  and  delivery,  where  the  mes- 
sage falls  within  the  cases  of  interstate  messages  ?  This  question  has 
been  answered  by  an  almost  unanimity  of  decisions  in  the  affirma- 
tive. It  has  been  held  that  the  sender  may  recover  damages  for  such 
breach,  although  it  happened  in  the  state  other  than  that  from  which 
the  message  was  sent.^^^  The  receiver  of  the  message  may,  as  held, 
maintain  the  suit  also,  with  respect  to  a  civil  action,  and  it  does  not 
matter  where  the  breach  occurred.^^     The  contract  for  sending  the 

-^  Peterson  v.  West.  U.  Tel.  Co.,  cited  Richmond,  8  Atl.    (Pa.)    171;  Smith  v. 

in  note  23.  We.st.  U.  Tel.  Co.,  83  Ky.   104,  4  Am. 

"  Nye  V.  West.  U.  Tel.  Co.,  104  Fed.  St.  Rep.  126.     See  also  Kemp  v.  West. 

628;    Stockhan  v.    West.    U.    Tel.    Co.,  U.  Tel.  Co.,  28  Neb.   661,  26  Am.  St. 

10  Kan.  App.  580,  63  Pac.  658.  Rep.  363,  44  N.  W.   1064. 

^»Weir  V.   Hoss,   6   Ala.   881;   Mayne  ="  Id. 

V.  Fletcher,  9  Barn.  &  Co.,  382;   Park  ■'Young   v.    West.    U.    Tel.    Co.,    107 

V.  Detroit  Free  Press  Co.,  72  Mich.  560,  N.   C.   370,    11    S.    E.    1044,    22    Am. 

1    L.  R.  A.   59!),   16  Am.  St.  Rep.  544.  St.  Rei).  883,  9  L.  R.  A.  669n;   Wads- 

-MVest.  U.  Tel.  Co.   v.   Reynolds,   77  worth   v.    West.   U.   Tel.   Co.,   86  Tenn. 

Vt.   173,  46  Am.  Rep.   715;   Dougherty  605,    (i    Am.    St.    Rep.    864.      Compare 

V.   Am.    U.    Tel.    Co.,    75    Ala.    168,    51  Carnahan  v.  West.  U.  Tel.  Co.,  89  Ind. 

Am.   Rep.    435;    West.    U.    Tel.    Co.    v.  .j26,  46  Am.  Rep.  175. 


<^    433]  LIAIJILITV    I.N    I'AKTICLLAlt   CASES.  410 

message  was  made  in  the  state  from  which  it  was  sent,  and  there  the 
action  should  be  maintained  irrepective  of  the  place  or  places  where 
the  breach  occurred.  '"It  is  wholly  immaterial,"  as  was  said,  "where 
the  act  or  omission  occurred,  whether  at  the  office  where  it  was  re- 
ceived, at  some  intermediate  point,  or  at  the  office  to  which  it  was 
sent.  The  contract  cannot  in  such  case  be  said  to  have  been  violated 
at  one  place  any  more  than  at  another.  It  is  violated  everywhere 
because  it  is  performed  nowhere."^-  This  rule  would  only  apply 
where  the  action  was  to  recover  damages  for  a  breach  of  its  public 
duties,  or  on  an  action  of  tort.  And  it  seems  that  the  fact  that  a 
statute  exists  which  is  declaratory  of  the  common-law  duty,  and 
which  further  provides  that  the  company  shall  not  contract  to  limit 
its  liability  for  the  consequences  of  its  negligence,  does  not  create  a 
different  case  or  necessitate  a  different  rule  of  law.^^ 

§  433.     Recover  of  statutory  penalty — not  applicable. 

The  above  rule  is  different  when  the  action  is  to  recover  a  statutory 
penalty  imposed  on  these  companies  for  a  violation  of  their  duties. 
It  is  a  general  law  that  penal  statutes  cannot  be  enforced  beyond  the 
state  creating  them,  and  this  rule  is  applicable  in  the  present  in- 
stance.^^  While  they  are  enforcible  against  these  companies  when 
the  violation  of  the  statute  occurs  within  its  limits,  notwithstanding 
the  fact  that  the  message  falls  under  the  class  of  interstate  messa- 
ges,^ ^  yet  they  cannot  be  eifective  beyond  the  state  boundaries.  One 
of  the  reasons  for  holding  to  such  a  rule  is,  that  to  enforce  such  would 
necessarily  involve  these  companies  in  endless  difficulty,  in  that  they 
would  be  punished  in  different  ways  for  the  same  wrong.     As  was 

"West.  U.  Tel.  Co.  y.  Hamilton,  50  ■'-■Thus    where   the    company   fails   to 

Ind.    181.     This   case   is   overruled   by  deliver  a  telegram,  tlie  penalty  may  be 

the     Supreme     Court    of     the     United  lecovered,    although    the    message  was 

States  in  AVest.  U.  Tel.  Co.  v.  Pendle-  sent  from  a  point  without  the  state: 

ton,  122  U.  S.  347.  West.    U.    Tel.    Co.    v.    James,    90    Ga. 

*='Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  254.     So,  Where  there  is  a  refusal  or 

661,  44   X.   W.   1064,  26  Am.   St.  Rep.  failure   to   transmit,    the    sender    may 

363.  enforce  the  penalty,  although  the  point 

^Alexander  v.  West.  U.  Tel.  Co..  66  or  destination  of  the  message  is  in  an- 

Miss.   161,  5  So.  397,  14  Am.  St.  Rep.  other  state:     Connell  v.  West.   U.  Tel. 

556,  3  L.  R.  A.  71;  West.  U.  Tel.  Co.  Co.,  108  Mo.  459,   18  S.  W.  883. 
V    Pendleton.    122   U.   S.   347. 


4:20  TELEGRAPH   AND   TELEPHONE    COMPAiS'IES.  [<§>    433 

ably  said :  "Unless  we  adopt  the  view  that  the  statute  only  applies  to 
contracts  made  in  this  state,  we  shall  be  involved  in  endless  difficulty. 
Any  other  rule  would  make  the  telegraph  company  amenable  to 
different  punishments  for  the  same  wrong,  for  it  is  quite  clear  that 
if  the  wrong  is  punishable  by  the  laws  of  the  place  where  the  contract 
is  made,  it  would  be  no  answer  to  a  prosecution  there  to  plead  a  judg- 
ment rendered  in  another  forum  under  a  different  law^"  ^*^  If,  how- 
ever, as  often  is  the  case,  the  initial  and  terminal  points  of  the  line 
are  within  the  same  state,  but  the  message  is  circuitously  sent  through 
another  i)i  order  to  reach  its  destination,  the  message  will  not  be 
classed  as  an  interstate  message  and  so  governed  by  the  laws  appli- 
cable to  such,^^ 

§  434.     Sunday  messages — no  duty  to  send. 

As  has  been  said  at  another  place,  telegraph  companies  may  adopt 
and  enforce  reasonable  regulations  with  respect  to  their  office  hours, 
and  this  embraces  the  right  to  close  their  offices  on  Sundays  when  the 
locality  of  the  place  does  not  necessitate  them  to  do  otherwise.  With 
exception  of  M'orks  of  necessity,  it  is  not  the  duty  of  any  institution, 
possessed  with  the  principles  of  a  public  character  to  discharge  any 
of  its  public  duties  on  these  days.  So,  it  follows,  that  telegraph  com- 
panies are  not  under  any  obligation  to  perform  any  of  their  common- 
law  duties  on  Sundays,  unless  the  performance  of  same  is  a  matter 
of  necessity.  Of  course,  some  of  their  offices  are  kept  open  on  Sun- 
days, especially  where  they  are  at  places  of  some  size,^^  in  order  that 
they  may  transmit  messages  concerning  matters  of  necessity,  and 
about  other  business  matters  which  they  desire  to  look  after.  For  the 
reason  that  some  of  their  offices  may  be  closed  on  Sundays,  by  a  right 
acquired  under  such  a  regulation,  does  not  prevent  the  agent  at 
those  places  from  accepting  messages  for  transmission,  yet 
the  acceptance  is.  always  conditional;  and  when  this  has  not 
been  removed  and  there  has  been  a  failure  to  promptly  trans- 
mit the  message,     the    company    will    not    be     liable.       If    there 

^'Carnahan  v.  West.  U.  Tel.  Co.,  89  ^«  Brown    v.    West.    U.    Tel.      Co.,    21 

Ind.  526,  40  Am.  Rep.   175.  Pac.    (Utah)    988. 

^  Campbell   v.   Chicago,   etc.,   R.   Co., 
53  X.  W.    (Iowa)    351. 


§    435]  LIAUII.ITY    IX    PARTICULAR   CASES.  421 

were  no  conditions  to  the  acceptance  of  a  message,  har<lship5 
and  impositions  might  be  imposed  on  these  companies;  for, 
a  willingness  of  the  operator  at  that  particular  place  to  accept  the 
message  might  not  be  sanctioned,  or,  more  than  likely,  not  known  by 
the  operator  at  the  place  to  which  it  is  to  be  sent.  In  other  words, 
it  is  not  the  duty  of  the  telegraph  operators  to  know  the  office  hours 
of  other  stations, ^^  and  for  this  reason  the  agent  may  be  willing  to 
receive  a  message  to  transmit  (he  may  further  attempt  to  transmit 
the  message),  yet  he  may  be  prevented  from  doing  so  because  of  the 
fact  that  the  other  office,  at  the  place  to  which  the  message  is  to  be 
sent,  is  closed;"*^  so,  to  hold  the  company  liable,  under  such  circum- 
stances, would  be  unjust. 

§  435.     Sunday  contracts — void. 

Ordinarily,  contracts  entered  into  and  to  be  performed  on  Sunday, 
are  void.'*^  It  M'as  not,  however,  considered  under  the  common  law 
that  such  contracts  were  invalid,^-  and  the  statutes  now  do  not  gen- 
erally prohibit  the  making  of  such  contracts  ;but  it  is  considered  that, 
to  enforce  these,  would  be  against  public  morals,  and  the  contracting 
parties  thereto  should  not  be  assisted  by  the  courts  in  enforcing  such. 
They  both  are  i)i  pari  delicto  and  are  not  in  a  position  to  invoke  the 
aid  of  the  law.'^'^  As  has  been  elsewhere  stated,  the  employment  of  a 
telegraph  company  to  transmit  intelligence  by  means  of  its  instru- 


«"  Given   v.    West.      U.   Tel.     Co.,     24  230;   Woodman  v.   Hubbard,  25   N.   H. 

Fed.    119.  G7,  7  Am.  Dec.  310;   Brimhall  v.  Van 

*"  There  is  an  implied  condition  that  Campers,  8  Minn.   1,  82  Am.  Dec.   118. 

the  terminal  office  is  open:    Thompson  *- Bloom  v.  Richards,  2  Ohio  St.  389; 

V.  West.  U.  Tel.  Co.,  32  Mo.  App.  191;  Adams  v.   Gray,   19  Vt.   365;   Ames  v. 

West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  Kyle,  2  Yerg.   (Tenn.)    31,  24  Am.  Dec. 

505.  346. 

"Plaisted   v.    Palmer.   63     Me.   576;  "Schneider  v.  Sampson,  62  Tex.  203, 

Meader  v.   White,   06  :Me.   90,   22   Am.  5  Am.  Kep.  521;  Ellis  v.  Hammond,  57 

Rep.   551;    Winfield  v.  Dody.  45  Mich.  Ga.   179;   Granson  v.  Gross.   107  Mass. 

355.  40  Am.  Rep.  476;  Bradley  v.  Rea,  439,    9    Am.    Rep.    45;    Levet   v.    Cred- 

103   Mass.   188,  4  Am.   Rep.   524;   Ryn  ilors.  22  La.  Ann.   105;   Kinney  v.  Mc- 

V.    Darby,   20    X.   J.   Eq.   230;    Day   v.  Dermott,    55   Iowa   674,   8   X.   W.    656, 

McAllister,   15   Gray  433;   Graerson  v.  39  Am.  Rep.  191;  Moore  v.  Kendall.  2 

Grass.   107   Mass.  439,  9  Am.  Rep.  45;  Penny    (Wis.)    99,    52   Am.    Dec.    145; 

Butler  V.  Lee.  11  Ala.  885,  46  Am.  Dec.  Beauchamp  v.   Comfort,   42  Miss.   97. 


422  TELEGRAPH   AXD   TELEPHONE    COMPANIES.  [<§    4^5 

ments  and  facilities,  is  a  contract ;  therefore,  a  contract  of  this  nature 
made  with  a  telegraph  company  on  Sunday,  is  void  and  no  action  can 
be  based  upon  it."*"*  In  order  to  enforce  any  contract,  the  grounds 
upon,  or  the  subject-matter  about  which  it  is  made,  must  be  clear  of 
any  immorality  or  illegality.  As  said,  contracts  made  on  Sunday  are 
against  public  morals,  and  the  grounds  upon  which  such  contracts 
are  made  are  therefore  not  such  as  will  justify  the  maintenance  of  a 
suit  thereon  and  are  unenforcible. 

§  436.     Same  continued — matters  of  necessity  or  charity. 

It  has  never  been  questioned,  where  matters  of  charity  or  necessi- 
ty are  considered,  that  the  law  makes  any  distinction  between  Sun- 
day and  other  days  of  the  week;  they  are  all  regarded  alike  both  as 
regards  the  validity  of  contracts  and  the  right  to  engage  in  work  or 
labor.'*  ^  So,  where  a  contract  is  made  on  Sunday  for  the  sending  of 
a  message  which  concerns  matters  of  necessity  or  charity,  the  com- 
pany will  be  liable  for  a  failure  to  transmit  such  message.^*^  This 
is  an  exception  to  the  rule  that  Sunday  contracts  are  invalid.  While 
this  is  the  rule,  the  difficulty  arises  in  determining  what  messages  re- 
late to  matters  of  charity  or  necessity.  Contracts  to  transmit  messa- 
ges regarding  ordinary  business,  which  can  be  sent  on  any  weekday 
as  well  on  Sundays  are  not  within  the  exception  to  the  general  rule 
that  ordinary  business  shall  not  be  performed  on  Sunday;  but  there 
may  be  facts  which  would  impress  such  a  message  as  being  one  of 
necessity.  The  company  must  be  informed,  in  some  manner,  of  the 
nature  of  the  message — whether  it  does  or  does  not  concern  matters 
of  charity  or  necessity.**'^  This  may  be  done  either  by  the  sender  giv- 
ing this  information  verbally,  or  the  message  may  contain  such  facts 
on  its  face ;  and  the  burden,  in  any  case,  is  on  the  sender  to  prove  this 
fact.^'^  If  the  message  shows  on  its  face  that  its  object  is  to  relieve 
the  sick  or  suffering,  to  prevent  great  or  irreparable  injury  to  life 

"Rogers  v.  West.  U.  Tel.  Co.,  78  Ind.  Wright,  30  Iiid.  476,  <J5  Am.  Dec.  705. 

169,  41  Am.  Rep.  568;   West.  U.  Tel.  "See  notes  44  and  45  for  cases, 

Co.  V.  Yopst,  118  Ind.  248,  .3  L.  R.  A.  "West.  U.  Tel.  Co.  v.  Yopst,  11  N. 

224n,  11  N.  E.  16.  E.   16,   118  Ind.  248,  3  L.  R.  A.  224n. 

«Troett   V.    Decker,    51    Wis.    46,    37  "  Troewert    v.    Decker,    51    Wis.    46: 

Am.   Rep.   808;    Edgerton  v.    State,   67  West.  U.  Tel.  Co.  v.  Yopst,  116     Ind. 

Ind.    588,    33    Am.    Rep.    110;    Pate   v.  340,  11  N.  E.  16,  3  L.  R.  A.  224n. 


§    437]  LIABILITY   IX   PARTICULAR    CASES.  423 

or  property,  or  if  it  is  intended  to  secure  the  presence  of  a  relative 
at  the  funeral  of  a  kinsman,  or  if  it  is  intended  for  any  similar  pur- 
pose, it  may  be  regarded  as  one  concerning  matters  of  necessity  or 
charity,  and  the  company  would  ,<:enerally  be  informed  of  such  fact 
by  the  face  of  the  message. 

§  437.     Same  continued — illustrations. 

A  message  addressed  to  a  physician,  notifying  him  of  the  illness  of 
the  sendee's  daughter  and  requesting  him  to  come  at  once,  sufficiently 
shows  the  necessity  of  its  being  sent  at  once."*^  A  message  to  a  person 
notifying  him  of  the  death  of  his  father  and  requesting  his  attendance 
at  the  funeral,  involves  such  a  moral  necessity  that  a  contract  for  its 
transmission  may  be  valid,  although  made  on  Sunday.^^  A  husband, 
absent  from  home,  sent  to  his  wife  a  message  by  telegraph  explaining 
his  protracted  absence,  and  announcing  the  time  of  his  return.  It  was 
held  that  the  sending  of  such  a  message  involved  a  moral  necessity, 
and  the  contract  was  therefore  valid ;  nor  was  such  a  contract  ren- 
dered illegal  by  the  fact  that  the  sender  might  as  well  have  sent  it  on 
the  preceding  Saturday,  but  failed  to  do  so  through  inadvertence.^^ 
So,  also,  a  message  reading,  "Bettie  and  baby  dead,  come  to  C.  to- 
night to  my  help,"  sent  by  a  person  whose  wife  and  child  had  just 
died,  asking  his  father  to  come  to  his  assistance,  is  one  of  necessity, 
and  shows  such  necessity  on  its  face.°-  In  another  case,  it  appeared 
that  the  sender,  the  plaintiff  in  the  case,  was  a  stenographer,  who  had 
been  engaged  to  make  a  report  of  a  certain  trial  and  to  furnish  notes 
of  the  evidence  for  a  bill  of  exceptions.  The  time  for  filing  such  a 
bill  was  limited,  and  plaintiff,  after  working  assiduously,  furnished 
the  report  two  days  before  the  expiration  of  the  time.  It  was  neces- 
sary that  the  attorney  managing  the  case  should  at  once  be  informed, 
so  that  he  might  secure  the  signature  of  the  judge  before  the  term  ex- 
pired. He  therefore  sent  the  attorney  this  message,  "Bring  forty  dol- 
lars if  you  want  record,"  offering  it  for  transmission  on  Sunday.  The 

"West.  U.  Tel.  Co.  v.  Giitlin.   1   Ind.  ^'Burnett   v.    West.    U.   Tel.    Co.,   39 

App.  46;   Brown  v.  West.  U.  Tel.  Co.,  Mo.  App.   559. 

21  Pac.   (Utah)    988.  "  Gulf,  etc.,  R.  Co.  v.  Levy,  59  Tex. 

'*West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  543. 
32,  9  So.  414. 


424  TELEGRAPH    AXD    TELEPIIOXE    COIMPANIES.  [^    437 

court  allowed  plaintiff  to  recover,  holding  that  the  message  related  to 
a  matter  of  necessity,  and  there  being  a  complete  failure  to  send,  the 
company  could  not  urge  that  the  message  did  not  exhibit  on  its  face 
the  necessity/'^ 

§  438.     Statutory  penalty — applicable. 

This  rule  is  applicable  where  the  suit  is  brought  for  the  purpose  of 
recovering  the  statutory  penalty  imposed  on  these  companies  for  a 
failure  to  promptly  transmit  a  message.  Thus,  if  the  message  is  ac- 
cepted by  the  operator  on  Sunday,  but  it  does  not  show  on  its  face 
that  its  contents  concern  matters  of  charity  or  necessity,  and  this  fact 
has  not  been  given  to  the  operator  in  other  ways,  the  company  will 
not  be  liable  for  a  statutoiy  penalty  imposed  on  it  for  a  failure  to 
promptly  transmit  the  message ;  but  should  the  operator  be  inform- 
ed of  the  necessity  of  its  immediate  transmission,  the  company  would 
be  liable.  If,  however,  the  action  is  brought  to  recover,  either  the 
statutory  penalty  or  the  damages  arising  out  of  the  breach  of  contract 
wherein  the  company  has  failed  to  promptly  transmit  and  deliver  a 
message  concerning  matters  of  necessity,and  it  is  shown  that  the  term- 
inal office  was  closed,  the  company  will  not  be  liable,  provided  it  is 
not  located  at  a  place  w^hose  size  necessitates  it  to  be  opened.  It  seems, 
however,  that  if  the  receiving  operator  ascertain  this  fact,  he  should 
use  reasonable  diligence  to  infonn  the  sender,  in  order  that  the  lat- 
ter may  make  other  arrangements. 

§  439.     Action  of  tort — rule  not  applicable. 

It  is  a  general  principal  of  law,  that  if  a  passenger  is  injured  by 
the  negligence  of  the  carrier,  the  fact  that  the  injury  was  done  on 
Sunday,  or  that  the  contract  of  carriage  was  made  on  Sunday,  will  be 
no  defense  for  the  company  in  an  action  brought  to  recover  dam- 
ages for  such  injury.^*  From  an  analogy  to  this  principle,  it 
would  seem  that,  in  those  jurisdictions  where  the  addressee  may  or 

°^See  note  48.  17  Am.  Rep.  221;   Baldwin  v.  Barney, 

=*  Sutton  V.  Wanwatosa,  29  Wis.  21,  12  R.  I.  392,  34  Am.  Rep.  670;   John- 

L)  Am.  Rep.  534;   Platz  v.  Coehoes,  89  son  v.   Missouri   Pac.   R.   Co.    18   Neb. 

N.   Y.   219,  42  Am.  Rep.   286;    Carroll  600;   Smith  v.  New  York,  etc.,  R.  Co., 

V.  Staten  Island  R.  Co..  .58  N.  Y.   120,  40  N.  J.  L.  7. 


§    440]  LIABILITY    IX    I'AKTICULAU    CASES,  425 

should  maintain  his  action  in  tort  for  the  broach  of  the  contract  of 
sending  the  message,  the  fact  that  such  contract  was  made  on  Sun- 
day would  be  no  defense  to  the  company.  The  company,  as  said,may 
refuse  to  accept  on  Sundays  any  message  not  concerning  matters  of 
necessity,  but  should  it  accept  such  message,  and  negligently  fail  to 
promptly  transmit  it,  the  company  would  be  liable  although  the  con- 
tract for  sending  was  made  on  Sunday.  Thus,  if  it  should  accept  a 
message  which  could  ordinarily  be  sent  during  the  weekdays,  and  fur- 
thermore, it  was  not  sent  on  such  days  through  the  inadvertence  of 
the  sender,  the  company  will  be  liable  in  damages,  or  for  the  statu- 
toiy  damages,  for  a  failure  to  transmit  it  on  that  day.^^  The  action 
is  founded,  not  on  the  contract — which  may  be  iinenforcible,  for  the 
reason  of  its  having  been  made  on  Sunday — but  on  the  tort  arising 
out  of  such  contract. 

§  440.     Forged  and  fraudulent  messages. 

Crimes  may  be  committed  by  means  of  the  telegraph,  as  through 
other  similar  agencies ;  and  when  it  is  shown  that  the  company  aids  in 
the  commission  of  a  crime  by  carelessly  or  negligently  discharging 
its  duties,  it  will  be  liable  for  all  damages  arising  out  of  such  crim- 
inal act.  This  fact  is  more  clearly  shown  by  losses  occurring  in  the 
transmission  of  forged  and  fraudulent  messages.  So,  where  a  mes- 
sage of  this  nature  is  accepted  and  transmitted  over  a  company's  line, 
and  the  same  is  delivered  to  the  addressee,  who  accepts  it  in  good  faith 
— believing  it  to  be  uncontaminated  with  such  fraudulent  purposes — 
and  thereby  complies  with  its  objects  to  his  injury,  the  company  will 
be  liable  for  all  loses  flowing  directly  therefrom,  if  it  can  be  made  to 
appear  that  the  latter's  agent,  by  the  exercise  of  ordinary  care,  might 
have  detected  and  prevented  such  frand.^^  It  is  as  much  the  duty  of 
telegraph  operators,  while  acting  in  the  capacity  of  agent  for  these 
companies,  to  prevent  crimes  from  being  committed  through  the  in- 
strumentality of  their  lines  as  it  is  for  persons  acting  in  similar  posi- 
tions, or  when  they  stand  in  a  fiduciary  relation  toward  the  person  on 
Mliom  the  crime  or  fraud  is  attempted  to  be    perpetrated;    and    any 

•-■•See  note  48.  U.  Tel.  Co..  45  X.  Y.  .=i40.  G  .\ni.  Eep. 

"■Strause  v.   West.     U.  Tel.   Co.,     8       140. 
Bliss.    (U.   S.)    104;     Elwood  v.   West. 


426  TELEGRAPH   AND   TELEPHONE    COMPANIES.  [§    440 

suspicious  acts,  made  at  the  time  of  the  attempted  crime, which  would 
lead  a  man  of  ordinary  understanding  to  believe  a  crime  or  fraud  was 
being  perpetrated,^'  and  with  which  he  then  fails  to  interfere,  his 
negligence  in  failing  to  prevent  such  will  be  conclusively  presumed, 
and  he  or  his  principal  will,  therefore,  be  liable  for  the  damages  aris- 
ing from  such  acts.  So,  if  at  the  time  the  message  is  delivered  to  the 
operator,  there  are  circumstances  attending  the  request  to  transmit 
which  w^ould  give  the  operator  reasonable  ground  to  suspect  that  a 
fraud  was  about  to  be  committed,  his  negligence  in  not  attempting 
to  prevent  same  will  be  conclusively  presumed.^ ^ 

§  441.     Same  continued — negligence  must  be  proximate  cause. 

In  order  to  hold  the  company  liable  for  losses  caused  by  its  oper- 
ator's negligently  permitting  a  forged  or  fraudulent  message  to  be 
transmitted,  it  must  be  shown  that  such  negligence  was  the  proxi- 
mate cause  of  the  injury, ^^  although  it  may  be  clear  that,  except  for 
the  negligence  of  the  operator,  the  loss  would  not  have  happened.^^  In 
other  words,  there  must  be  a  connection  between  the  wrong  alleged 
and  the  resulting  injury ;  in  the  contemplation  of  law,  they  stand  re- 
lated to  each  other  as  cause  and  effect  so  as  to  give  a  right  of  action 
against  the  wrongdoer  and  make  him  chargeable  with  the  loss.^^  It  is 

*^West.  U.  Tel.  Co.  v.  Meyer,  61  Ala.  day   McC.   presented     himself   at     the 

158,  32  Am.  Rep.  1.  plaintiff's  banking  house  and  drew  ten 

^  In  the  case  of  Elwood  v.  West.  U.  thousand   dollars   on   the    faith   of  the 

Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep.  140,  telegram,  leaving  an  equal  sum  to  his 

it  appeared  that  the  plaintiff,  B.  &  Co.  credit.     It  appeared  that  the  telegram 

were  brokers,   doing  business   at   P.   in  v/as  fraudulent;  that  McC.  himself  had 

Pennsylvania.     On  August   12th     they  presented    the    telegi-am    at    TitusvilU' 

received  this  telegram:      "From    Erie,  for    transmission;     that    the    operator 

Pa.,   dated  August     12th.     Forwarded  knew   McC.    by    that   name;    and   that 

from  Fitersville,   12  M.   received  Aug.  he  showed  no  authority  from  the  cash- 

12th.     To  P.  &  Co.  P.,  Pa.: — Keystone  ier   when   he    offered   the    message   for 

Bank  will  pay  the  check  of  T.  F.  McC.  transmission.     It    was    held    that    the 

to  the  amount  of  twenty  thousand  dol-  company  was  liable  to  the  plaintiffs  for 

lars      ($20,000.00)      Keystone     Bank.''  the   loss   sustained  by   them,   since  the 

The   plaintiff   observed    that   the   name  operator  had  been  guilty  of  negligence 

of    the    officer    of    the    bank    had   been  in  not  detecting  so  palpable  a  fraud, 
omitted,     and  a   second     message  was  ^»West.  U.  Tel.  Co.  v.  Lowery,  60  X. 

then    received    with    the    addition    of  Y.  198,  19  Am.  Rep.  154. 
words  "J.  J.    Town,    cashier  of    Key-  *"  Id. 

stone   Bank."     Near   the   close    of   the  '^  Id. 


^    442]  LIABILITY  IX   PARTICULAR  CASES.  427 

not  every  breach  of  duty  which  will  be  a  sufficient  ground  on  which 
to  base  an  action ;  for,  while  it  may  be  a  causing  cause  which  l^rings 
about  a  loss  for  injury,  yet  it  may  not  be-  the  direct,  natural  or  prox- 
imate cause  of  such  injury.  The  proximate  cause  of  the  injury  may 
be  one  of  the  results  of  the  breach  of  the  operator's  duties;  but  this 
may  be  acted  upon  by  other  intermediate  causes  which  would  effect 
the  breach,  as  being  a  remote  or  indirect  cause  of  the  injury,  and 
which  fact  would  relieve  the  company  from  liability.  In  a  case  in 
which  this  point  w^as  at  issue  it  appeared  that  the  sender  transmit- 
ted a  message  to  the  plaintiff,  asking  for  a  loan  of  five  hundred  dol- 
lars. By  mistake  the  message  was  transmitted  as  asking  for  five 
thousand  dollars.  The  money  was  sent  and  the  original  sendee,  over- 
come by  cupidity,  absconded  with  it.  It  was  held  that  the  company 
was  not  liable,  since  the  injury  did  not  result  as  a  proximate  cause 
of  its  negligence.  The  court  said  in  this  case :  "The  plaintiff  parted 
with  his  money  by  reason  of  the  message,  believing  it  to  have  been 
sent  by  Brown.  He  was  willing  to  trust  him  with  $5,000,  and  the 
mistake  of  the  company  did  not  induce  the  confidence  which  the 
plaintiff  had  in  his  integrity.  .  .  .  The  embezzlement  could  not  reas- 
onably have  been  expected,  and  did  not  naturally  flow  from  the  wrong 
of  the  defendant. '"52 

§  442.     Same  continued — operator  author  of  forged  message. 

]Srot  only  is  a  telegraph  company  liable  in  damages  for  injuries 
caused  by  the  transmission  of  a  forged  or  fraudulent  message,  whose 
author  is  some  one  not  connected  with  the  company,  but  it  is  also 
liable  when  the  message  was  fraudulently  made  and  sent  by  its  own 
operators.^'"^     The  ground  on  which  these  companies  have  attempted 

"^Id.  city  lequesling  them  to  forward  nion- 
""Pao.  Postal  Tel.  Cable  Co.  v.  Palo,  ey  to  their  correspondent  at  the  for- 
Alto  Bank  (C.  C.  A.),  109  Fed.  369,  mer  place  to  be  used  in  buying  grain; 
64  L.  R.  A.  711;  McCord  v.  West.  U.  ho  forged  the  name  of  the  agent  em- 
Tel.  Co.,  39  Minn.  181,  1  L.  R.  A.  ployed  by  the  addressee  to  purchase 
143n,  12  Am.  St.  Rep.  636.  In  the  wheat  for  them.  The  dispatch  was 
last  case,  the  local  agent  of  the  tele-  duly  received,  and  the  money  in  good 
graph  company,  who  was  also  the  local  faith  forwarded  by  express:  but  the 
agent  for  the  express  company  sent  a  local  agent  intercepted  the  package 
dispatch  to  merchants  in  a  neighboring  and  converted  tlic  money.     It  was  held 


428 


TELEGKAPH   AXD    TELEPHO]N^E    COMPANIES, 


[§    ^^-^ 


to  exonerate  themselves  from  liability  in  siicli  cases  is  that  the  maxim^ 
respondeat  superior,  does  not  apply,  becanse  the  operator  in  sending 
the  message  was  not  acting  for  the  company  but  for  himself  and  about 
his  own  business,  and  should  be  treated  as  having  transcended  his 
authority  and  not  acting  in  furtherance  of  the  company's  business. 
The  general  rule,  with  few  exceptions,  that  the  liability  of  masters 
for  wrongs  of  their  servants,  is  not  confined  solely  to  those  classes  of 
cases  where  the  acts  complained  of  are  done  in  the  course  of  the  em- 
ployment and  in  the  furtherance  of  the  master's  business  or  inter- 
est.®* There  are  certain  duties  which  the  master,  when  exercising 
a  public  function,  owts  to  the  public.  One  of  these  is,  he  must  ab- 
stain from  committing  such  acts  as  will  become  an  injury  to  the  pub- 
lic ;  so,  if  the  master's  servant,  while  in  the  discharge  of  his  general 
duties  as  such,  should,  by  his  own  act,  occasion  a  violation  of  such 
duty,  the  master  will  be  liable,  whether  the  duty  be  founded  in  con- 
tract or  be  a  common-law  duty  growing  out  of  the  relation  in  which 


that  the  telegraph  company  must  an- 
swer to  the  addressee  for  the  loss,  the 
proximate  cause  thereof  having  been 
the  wilfull  wrong  of  the  company's 
agent.  The  court,  said:  "If  the  cor- 
poration fails  in  the  performance  of 
its  duty  (as  to  sending  messages) 
through  the  negligence  or  fraud  of  the 
agent  whom  it  has  delegated  to  per- 
form it,  the  master  is  responsible.  It 
was  the  business  of  the  agent  to  send 
dispatches  of  a  similar  character.  Such 
acts  were  within  the  scope  of  his  em- 
ployment, and  the  plaintiff  could  not 
know  the  circumstances  that  made  the 
particular  act  wrongful  and  unauthor- 
ized. As  for  him,  therefore,  it  must 
be  deemed  the  act  of  the  corporation." 
In  Magouirk  v.  West,  U.  Tel.  Co.,  79 
Miss.  632,  89  Am.  St,  Rep.  663,  an 
agent  of  the  defendant  company  sent 
this  message:  "Mr.  G.  Ellisville.  Be 
sure  to  go  to  Heidelberg.  Am  on  ex- 
cursion," and  forged  plaintiff's  name 
to  it.     Plaintiff  was  an  unmarried  wo- 


man and  the  addressee  an  unmarried 
man  with  whom  she  had  but  a  slight 
acquaintance.  After  sending  the  mes- 
sage, the  agent  boasted  of  having  sent 
it  and  paraded  its  contents  before  the 
public.  It  was  held  that  his  acts  were 
within  the  scope  of  his  employment 
and  that  the  company  was  liable  to 
plaintiff  for  the  mortification  and  in- 
juiy  occasioned  to  her.  It  was  also 
held  that  plaintiff  might  show  the 
agent's  habits  as  to  the  use  of  intoxi- 
cants as  indicating  his  unfitness  for 
the  position  he  held.  See  also  New 
York,  etc..  Printing  Tel.  Co,  v.  Dry- 
burg,  35  Pa.  St.  298,  78  Am.  Dec. 
338. 

"^McCord  V.  West.  U.  Tel.  Co.,  39 
Minn.  181,  1  L.  R.  A.  143n,  12  Am,  St, 
Rep,  638.  Compare  Matt  v.  Consum- 
ers' Ice  Co.,  73  N,  Y.  543;  Fishkill 
Savings  Institution  v.  Xat.  Bank,  80 
Ind.  162,  36  Am.  Dep.  599;  Potului  v. 
Sanders,  37  Minn.  517. 


^    444]  LIABILITY    I.\    I'AKTICLLAR    CASP:S.  429 

the  master  stands."^  The  wrongful  act  of  the  agent  is  the  proximate 
cause  of  the  injury,  and  the  fact  that  the  addressee  may  have  relied 
upon  the  confidence  and  reliability  of  the  sender,  whose  name  was 
forged  and  fraudulently  attached  to  the  telegTam,  will  not  be  such 
contributory  negligence  as  to  prevent  him  from  recovering;  although, 
if  he  had  not  been  misled  by  such  wrongful  act,  the  rule  would  be 
otherwise.  But  in  these  cases,  where  the  message  has  been  forged  by 
the  company's  operator,  he  is  misled.  If  it  were  the  business  of  the 
operator  to  send  messages  of  similar  character,  and  the  injured  party 
had  been  in  the  linbit  of  accepting  them  in  good  faith,  he  could  not 
know  the  circumstances  in  any  particular  case  that  would  make  the 
particular  act  wrongful,  and  unauthorized.  As  to  him,  therefore,  the 
acts  would  be  misleading  and  should  be  considered  as  flowing  directly 
from  the  company.®^ 

§  443.     Same  continued — sub-agent,  forgery  of. 

The  above  rule  is  applicable  where  the  message  is  forged  by  a  sub- 
agent  of  the  company  who  was  appointed  by  one  of  the  company's  op- 
erators having  no  authority  to  make  such  appointment.  In  a  case  on 
this  point,  the  sub-agent  sent  a  false  message  purporting  to  come 
from  the  cashier  of  a  bank,  directing  another  bank  to  pay  a  fictitious 
person  a  sum  of  money ;  he  then  impersonated  the  fictitious  person, 
iind  obtained  the  money.  Xo  negligence  on  the  part  of  the  bank  was 
shown.  It  was  held  that  the  company  was  responsible  to  the  bank 
for  the  amount  thus  obtained.  The  court  reasoned  that,  although  a 
principal  is  not  bound  by  a  contract  made  in  his  name  by  a  sub-agent 
appointed  by  his  agent  without  authority,  yet  he  is  responsible  for 
the  negligence  of  such  sub-agent,  if  the  agent  who  appointed  him  was 
at  the  time  acting  in  the  business  of  liis  principal  and  the  sub-agent 
was  transacting  such  business."' 

§  444.     Same  continued — no  bar  to  action  ex  delicto. 

It  has  been  attempted  to  be  shown  that  where  an  injury  has  occur- 
red by  the  negligent  transmission  of  a  forged  or  fraudulent  draft, 

•»  Sherman    and    Redfield    on    Xetr.    4  .Minn.   ISl,   12  Am.  St.  Rep.  638,   1  L. 

Ed..  §§149.  150.  l.-)4:   Taylor  on  Corp.  R    A.   143n,   39  N.   W.   315. 

2  Ed.,   §  145.  °'  State    Bank   v.    West.   I'.   Tel.   Co.. 

•"McCord    V.    ^^"cst.    U.    Tol.    Co..    30  .VJ  Cal.  280. 


ioO  TELEGEAPH   AND    TELEPHONE    COMPANIES.  [<^    44:i 

sent  hj  -means  of  a  telegi'aph  company,  the  injured  party  should 
first  seek  liis  remedy  against  the  indorser  of  the  draft  by  an  action 
ex-contradu ;  but  it  is  generally  held,  that  he  may  seek  his  remedy 
against  the  company  for  the  breach  of  its  duty  toward  him,  or  by  an 
action  ex-delicto,  although  one  of  the  indorsers  of  the  note  is  solvent 
and  amply  able  to  idemnify  him  for  his  loss.°^  As  was  said  by  Gres- 
ham,  J.,  by  way  of  illustration  of  this  rule:  "If  a  railroad  train  is 
wrecked  by  the  carelessness  of  a  drunken  engineer,  the  injured  pas- 
sengers have  two  remedies ;  one  against  the  engineer  for  the  tort,  and 
the  other  against  the  company  on  the  contract.  In  an  action  by  the 
passenger  in  such  a  case  against  the  engineer,  the  latter  would  not 
be  allowed  to  plead  against  all  but  nominal  damages  that  the  passen- 
ger had  a  remedy  against  the  solvent  carrier."^^ 

§  445.     Amount  of  damages. 

Having  considered  the  liability  of  the  telegraph  companies  for 
damages  occurring  in  the  transmission  of  forged  or  fraudulent  mes- 
sages, the  question  which  necessarily  follows  is.  What  damages  can  be 
recovered  in  such  cases?  The  general  rule  is  that  the  addressee  can 
recover  only  such  actual  damages  as  he  may  have  sustained  in  the 
particular  case.  In  other  words,  he  can  recover  in  damages  the 
amount  of  money  of  which  he  was  defrauded,  less  that  which  he  may 
have  recovered  from  the  defrauder.  Therefore,  he  cannot  recover 
from  the  company  the  fees  which  he  has  paid  an  attorney  for  col- 
lecting that  from  the  defrauder,  nor  the  costs  which  may  have  accrued 
in  its  collection.  As  before  said,  the  addressee  may  refuse  to  prose- 
cute the  defrauder  or  his  confederate  but  enforce  his  remedy  against 
the  telegraph  company.  If  this  should  be  the  course  pursued,  the 
amount  of  which  he  was  defrauded  could  be  recovered.  The  fact  that 
he  has  pursued  this  course  will  not  prevent  the  company  from  recov- 
ering from  the  defrauder  the  amount  which  it  has  paid  to  the  ad- 
dressee.'^" 

•^Strause   v.    West.    U.     Tel.    Co.,    8  "» Strause   v.    West.    U.    Tel.     Co.,    8 

Biss.   (U.  S.)    104;  Hasbrouck  v.  West.  Biss.    (U.  S.)    104. 

U.   Tel.  Co.,   107  Iowa  160,  77  N.  W.  '» Pac.  Post.  Tel.  Cab.  Co.  v.  PaloAl- 

1034,  70  Am.   Rep.   i81;   Bank  of  Cal.  to  Bank    (C.  C.  A.),  109  Fed.  369,  54 

V.  West.  U.  Tel.   Co.,  52   Cal.  280.  J.    R.  A.  711.     Exemplary  damages  may 


§    447]  LIABILITY   IX    PAETICULAR   CASES.  431 

§  446.     Connecting  lines — passage  over — initial  line — general  rule. 

By  tlie  analugy  to  the  principle  goveniiiig  the  liability  of  common 
carriers  of  goods,  the  general  rule  is,  that  a  telegi-aph  company  is  not 
bound  by  law  to  accept  and  transmit  messages  beyond  the  terminus 
of  its  own  line.  In  the  absence  of  any  agreement,  either  express  or 
clearly  implied,  for  transmission  beyond  it  own  line,  the  common- 
law  duty  of  an  independent  company  is  performed  when  it  safely 
transmits  the  message  over  its  own  line  and  delivers  it  promptly  and 
'correctly  to  the  connecting  line,  and  it  is  not  therefore  liable  for  any 
errors  or  delays  occurring  on  the  other  line."^  If,  in  such  case,  the 
message  is  to  be  delivered  by  the  initial  line  to  a  connecting  line  for 
further  transmission,  the  former  is  considered  as  a  forwarding  agent 
and  is  not  liable  for  the  defaults  of  the  subsequent  line  or  lines.  It 
may  be  said  here,  however,  that  the  whole  duty  of  the  initial  company 
is  not  always  performed  by  merely  tendering  the  message  promptly 
and  correctly  to  the  connecting  line.  If  the  latter  should  refuse  to 
accept  the  message,  it  is  the  duty  of  the  initial  company  to  make  a 
reasonable  effort  to  inform  the  sender  of  this  fact.  It  is  the  general 
rule,  with  some  exceptions,  that  the  connecting  line  should  accept 
the  message  under  agreement  of  the  original  contract  of  sending,  but 
should  the  message  be  accepted  conditionally,  with  respect  to  such 
agreement,  it  is  the  duty  of  the  initial  company  to  inform  the  sender 
of  this  fact.  It  is  within  the  discretion  of  the  sender  to  choose  the 
connecting  company  over  whose  lines  he  may  desire  the  message  to  be 
transmitted,  and  when  such  selection  has  been  made  it  is  the  duty  of 
the  initial  company  to  deliver  the  message  to  this  line. 

§  447.     Same  continued — English  rule. 

The  rule  in  England,  with  respect  to  the  liability  of  the  initial 
company  for  losses  occurring  on  connecting  lines,  is  different  from 

be  recovered  uhere  there  is  such  gross  Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep.  140. 

iioj.'lif:ence  on  the  part  of  the  agont  as  "West.    U.    Tel.    Co.    v.     Carew.     15 

to  indicate  wantonness   or  a   malicious  Mich.  525;    Baldwin  v.  U.   S.  Tel.  Co.. 

purpose  in  failing  to  transmit  and  de-  45  N.  Y.  744,  6  Am.  Rep.   165;   Gulf, 

liver  the  message:    West    v.  West.  U.  etc.,  R.  Co.  v.  Baird,  75  Tex.  250,   12 

Tel.   Co.,   39  Kan.   93,   17   Pae.   807,  7  S.  W.  530;  Smith  v.  West.  U.  Tel.  Co.. 

Am.  St.  Rep.  530:   Ehvood  v.  West.  U.  84  Tex.  359,  19  S.  W.  441.  31  Am.  St. 


432  TELEGRAPH   AND  TELEPHONE    COMPANIES.  [§    447 

that  generally  held  in  the  United  States.'-  It  is  held  in  England 
that,  where  a  common  carrier  accepts  goods  which  in  order  to  reach 
their  destination,  must  necessarily  be  transported  over  other  lines, 
the  initial  carrier,  in  the  absence  of  an  agreement  to  that  effect,  is 
liable  for  all  losses  not  caused  by  the  act  of  God  or  the  public  enemy, 
which  may  be  incurred  either  over  its  own  or  the  connecting  carriers 
lines.  The  ground  on  which  they  so  hold  is,  that  the  connecting  lines 
are  operating  in  the  capacity  of  agent  toward  the  initial  line,  and  that 
the  latter  is  bound  for  all  acts  of  its  agent.  There  are  some  of  our 
states  which  have  adopted  this  rule,  and  in  these  it  will  likely  be 
found  that  telegraph  companies,  accepting  messages  to  be  transmitted 
over  connecing  lines,  are  liable  for  all  errors  or  delays  made  over  the 
latter.'^^  It  is  held,  however,  under  this  rule,  that  the  carrier  may  by 
an  agreement  limit  its  liability  to  its  own  line."^^  On  the  blank  forms 
used  by  these  companies,  there  is  usually  a  stipulation  that  the  ini- 
tial company  is  to  act  as  agent  of  the  sender,  without  liability,  to 
forward  any  message  over  the  lines  of  any  other  company  when  nec- 
essary to  reach  its  destination.  This  stipulation  has  been  held  to  be 
reasonable  and  is  binding  on  the  sender  when  he  attaches  his  signa- 
ture to  the  message.  This  being  the  case  it  is  seldom  that  the  Eng- 
lish rule  can  be  enforced  against  the  telegi-aph  companies.'^ ^ 

§  448.     Accept  all  the  charges — rule  not  changed. 

It  is  generally  the  case,  when  messages  are  sent  over  connecting 
lines  in  order  to  reach  their  destination,  that  the  initial  company  re- 
Rep.  165.  Compare  Blodgett  v.  Ab-  30  Tex.  Civ.  App.  32,  69  S.  W.  464; 
bott,  72  Wis.  516,  40  N.  W.  491,  7  Am.  Gulf,  etc.,  R.  Co.  v.  Geer,  5  Tex.  Civ. 
St.  Rep.  873;  McLaren  v.  Detroit,  etc.,  349,  24  S.  W.  86. 

R    Co.,  23  Wis.  138 ;  St.  Louis,  etc.,  R.  ''^  Although   the   stipulation   may   not 

Co.  V.  Marrs   (Ark.),  31  S.  W.  42.  show  that  the  message  would  pass  over 

"  Stevenson  v.  Montreal  Tel.  Co.,  16  a  connecting  line,  the  sender  is  never- 

U.  C.  Q.  B.  530.  theless    put   upon    inquiry   and    cannot 

"Atchison,  etc.,  R.  Co.  v.  Roach,  35  hold  the  initial  company  liable  for  er- 

Kan.    740,    57    Am.   Rep.    199,    12    Pac.  rors   occurring  on   another  line  on  the 

93 _  ground    that    he    was    ignorant    of    the 

■*West.    U.    Tel.    Co.    v.    Carew,    15  fact  that  defendant's  lines  did  not  ex- 
Mich.  525;  McCarn  v.  Int.,  etc.,  R.  Co.,  tend    to    the    destination:      West.     U. 
84  Tex.  352,  19  S.  W.  547,  31  Am.  St.  Tel.  Co.  v.   Carew,   15  Mich.   525. 
Rep.   51;    West.  U.  Tel.   Co.  v.   Simms, 


<^    450]  LIABILITY    IX    PAIITICLLAK    CASES.  433 

ceives  from  the  sender  all  the  charges  for  transmitting  the  message 
over,  the  entire  route.  In  fact,  another  arrangement  ponld  not  bo  so 
conveniently  used.  This  does  not,  however,  make  the  initial  company, 
liable  for  any  errors  made  over  the  connecting  line.'^^  There  is  one 
case  holding  a  contrary  view,  but  we  think  this  is  an  erroneous  hold- 
ing.'^^  With  respect  to  the  collection  of  the  charges  by  the  initial 
company  for  the  connecting  lines,  the  former  acts  in  the  capacity  of 
agent  for  the  latter.  These  charges  are  collected  by  the  initial 
company  and  held  until  a  settlement  is  made  with  the  connecting 
lines,  when  they  are  divided  among  them  in  the  proportion  each  of 
these  lines  bear  to  the  entire  line  over  which  the  mssage  is  transmit- 
ted. This  is  the  general  rule  by  which  the  charges  are  divided;  and 
it  may  be  safely  said  that  the  initial  company  acts  only  as  agent  for 
the  others  in  the  collection  of  the  charges,  and  is  not  therefore  liable 
for  the  errors  of  the  others. 

§  449.     Initial  company — diligence  to  deliver  to  other  line. 

As  said  in  a  previous  section,  the  initial  company  has  not  perform- 
ed all  of  its  duties  by  delivering  the  message  to  the  connecting  line, 
but  it  must  further  exercise  due  diligence  in  making  a  prompt  deliv- 
ery to  this  company ;  and  any  loss  arising  out  of  such  delay  will  sub- 
ject the  former  to  the  loss."^^  Thus,  where  the  company  undertakes  to 
transmit  the  message  to  the  terminus  of  its  line,  and  there  forward  it 
by  mail,  a  delay  of  three  days  in  mailing  it  is  negligence  for  which 
it  will  be  liable."^  The  initial  company  will  be  liable  if  a  delay  on 
its  part  causes  a  greater  delay  on  the  connecting  line.^*^  It  is  further 
the  duty  of  the  initial  company  to  exercise  a  reasonable  effort  to  in- 
form the  sender  that  the  connecting  company  refuses  to  accept  the 
message,  or  that  its  lines  are  out  of  working  order.^^ 

§  450.     Same  continued — telephone — same  rule  applied. 

The  above  rule  applies  to  telephone  companies  where  they  carry  on 
long-distance  services.     Thus,  if  a  telephone  company  accepts  a  mes- 

••  Baldwin  v.   U.   S.  Tel.   Co.,  45   N.  ''West.   U.  Tel.  Co.  v.  Mcllvoy,  107 

y.  744,  6  Am.  Rep.   1657.  Ky.  G33,  55  S.  W.  428. 

"West.   U.    Tel.    Co.   v.    Shumate,   2  ^  Weatherford,  etc.,  R.  Co.  v.  Seals, 

Tex.   Civ.   App.   429,   21    S.   W.    109.  41  S.  W.   (Tex.)   841. 

"West.  U.  Tel.   Co.   v.   Seals,  45   S.  ^MVest.    U.    Tel.    Co.    v.    Sorsby,     29 

W.   (Tex.)    964.                     .  Tex.  Civ.  App.  345,  69  S.  W.   122. 
T.  &  T.— 28 


434  TELEGEAPII   AXD   TELEPHONE    COMPANIES.  [§    450 

sage  for  transmission  and  it  becomes  necessary  for  the  message  to  be 
communicated  over  other  lines  in  order  to  reach  its  destination,  the 
initial  company  must  promptly  and  correctly  deliver  the  message  to 
the  connecting  line,  and,  after  this  has  been  done,  it  will  not  be  liable 
for  any  errors  occurring  over  the  connecting  lines.  But  it  was  held  in 
one  case,  where  the  operator  at  the  terminus  of  the  initial  line  was 
also  the  operator  of  the  connecting  line — or,  in  other  words,  when  the 
same  party  was  the  common  operator  of  the  initial  and  the  connect- 
ing line  at  the  place  of  their  connection — that  for  an  error  caused  on 
the  latter  line  by  his  negligence,  the  former  company  will  be  liable.^^ 
When  the  telephone  is  not  doing  long-distance  service,  it  is  not  its 
duty,  in  the  first  place,  to  accept  a  message  whose  destination  is  be- 
yond its  terminus ;  but  should  such  a  message  be  accepted,  and  the 
connecting  line  refuse  to  accept  the  message,  the  former  will  not  be 
liable  for  such  non-acceptance. 

§  451.     Special  contract — may  become  liable  by. 

While  the  general  law  rule  is,  that  a  telegraph  company  is  only 
liable  for  such  errors  as  may  occur  on  its  own  line,  yet  it  may  con- 
tract so  as  to  bind  itself  for  the  negligence  of  connecting  lines  as  well 
as  for  its  own,^^  even  though  the  extra-terminal  connecting  line  ex- 
tends into  another  state  or  country.^^  This  proposition,  although  well 
settled,  was  at  first  closelj^  questioned  on  the  ground  that  contracts 
for  liability  beyond  its  terminius,  specified  in  the  charter,  were  ultra 
vires.^°  If,  therefore,  a  telegraph  company  should  contract  to  trans- 
mit a  message  beyond  its  terminus,  it  will  be  liable  for  all  damages 

« Southwestern  Tel.  etc.,  Co.  v.  Tay-  "West.   U.  Tel.     Co.  v.     Carter,  24 

lor,   26   Tex.   Civ.   App.   79,   63    S.   W.  Tex.    Civ.    App.    301,    58    S.    W.      734. 

1076.  See    also    Burtis    v.    Buffalo,    etc.,    R. 

«■  Turner  v.  Hawkeye  Tel.  Co.,  41  Co., '24  N.  Y.  269;  Phillips  v.  N.  C. 
Iowa  458,  20  Am.  Rep.  605.  See  also  Co.,  78  N.  C.  294;  Linley  v.  Rich- 
Crouch  V.  Great  Western  Railway,  2  mond,  etc.,  R.  Co.,  88  N.  C.  547; 
Hurt.  &  N.  491;  Great  Western  Rail-  McCorn  v.  Inter,  etc.,  R.  Co.,  84  Tex. 
way  Co.  V.  Crouch,  3  Hurt.  &  N.  183;  352,  19  S.  W.  547. 
Grand  Trunk  R.  Co.  v.  McMillan,  16  ^Perkins  v.  Portland,  etc.,  R.,  47 
Can.  Sup.  Ct.  R.  543,  42  Am.  &  Eng.  Me.  573 ;  Root  v.  Great  Western  R.,  45 
R.  Cas.  468.  X.   Y.    524;    Hill  Mfg.   Co.   v.   Boston, 

etc.,  R.,  104  Mass.   122. 


§    453]  LIAIULITY   IN    I'AUTICULAR  CASES.  435 

caused  by  any  delay,  or  by  any  errors  made  on  the  connecting  line, 
just  the  same  as  if  the  error  was  made  on  its  own  line. 

§  452.     Same  continued — who  may  contract. 

The  courts  hold  that  the  agent's  autiiurity  to  receive  goods  for  car- 
riage implies  authority  to  contract  for  extra-terminal  liability.*'^  The 
rule  of  telegraph  companies  is  in  this  respect  similar  to  these  hold- 
ings.^' In  other  words,  where  a  telegraph  company  carries  on  a 
general  telegTaphic  business,  it  may  make  a  contract  to  send  the  mes- 
sage to  its  destination, and  in  the  absence  of  the  proof  to  the  contrary, 
the  receiver  of  a  telegraph  company  will  be  presumed  to  have  author- 
ity to  make  such  a  contract.  Any  other  holding  would  be  contrary 
to  good  reason.  As  said  before,  these  contracts  are  matters  of  con- 
venience to  the  general  public,  in  that  the  sender  is  not  compelled  to 
make  contracts  with  the  connecting  lines,  but  may  accomplish  his 
purpose  by  making  one  contract  for  the  entire  route.  Then,  if  the 
company  has  this  right,  and  it  is  a  matter  of  convenience  to  the  pub- 
lie,  surely  the  company  should  delegate  the  authority  to  some  of  its 
agents,  conveniently  situated  to  the  public,  and  it  will  be  presumed 
that  the  operators  have  this  authority. 

§  453.     Where  statutes  make  the  initial  carrier  liable. 

The  rule  that  carriers  may  contract  against  extra-terminal  liability 
has  been  applied  even  where  a  statute  provides  that  a  common  car- 
rier, receiving  property  to  be  "transmitted  from  one  place  to  another 
within  or  without  the  state,"  or  "issuing  receipts  or  bills  of  lading  in 
the  state,"  should  be  liable  for  losses  to  such  property  by  its  negli- 
gence or  that  of  other  companies  to  which  it  may  be  delivered  for 
further  transportation.  In  many  states  there  have  also  been  statutes 
adopted  which  make  telegraph  companies  common  carriers;  and,  of 
course,  where  this  is  the  case  the  same  rule  will  be  applicable  to  such 
companies.     It  has  been  hold  that  the  effect  of  these  statutes  was 

■^'' IMusthanip  v.  Lancaster  &  P.  J.  R.  lor  v.  Maine  Cent.  E.  Co.,  87  Me.  209, 

R.   Co.,   8   M.   &    W.   421:    Scothorn  v.  32  Ail.  905. 

South,  etc..  R..  S  Exeh.  341;  Pickerson  "Jones   v.   Roacli.    21Tex.   Civ.    App. 

E.    M.    Co.    V.    Grand    Rapids,   etc.,    R.  301.   51    S.   W.   540. 
Co.,  07  :\Ii(li.  110.  34  X.  W.  209;  Tay- 


436  TELEGRAPH    AXD    TELEPHONE    COMPANIES.  [<^    453 

merely  to  prescribe  a  definite  rule  of  evidence,  substantially  the  same 
as  the  English  rule,  whereby  a  prima  facie  liability  would  be  estab- 
lished in  the  absence  of  a  specific  contract  against  extra-terminal  lia- 
bility.^^ The  decisions  on  these  statutes  have  been  modified  by  later 
decisions  in  such  a  way  that  the  carrier  may  limit  its  liability  to  the 
terminus  of  its  own  route,  yet  it  cannot  contract  for  a  through  ship- 
ment and  at  the  same  time  exempt  itself  from  liability  on  account  of 
the  negligence  of  the  connecting  line.^^  It  was  held  that  these  con- 
tracts were  not  invalid  as  regulating  or  interfering  with  interstate 
commerce.®^ 

§  454.     Actions  on  extra-terminal  contracts — against  whom. 

When  a  contract  has  been  made  to  transmit  a  message  beyond  the 
terminus  of  its  line,  the  question  which  confronts  us  is, Against  whom 
should  the  action  be  brought  when  a  loss  has  been  incurred  by  a  de- 
lay or  by  an  error  in  its  transmission  ?  Under  the  English  rule, 
where  it  is  understood,  by  an  implied  contract,  that  the  initial  com- 
pany has  assumed  the  responsibility  of  a  safe  transmission  of  the 
message  to  its  destination,  it  is  held  that  the  action  must  be  brought 
against  the  initial  company,  although  the  negligence  may  have  oc- 
curred on  another  line.^^  This  rule  has  been  followed  by  one  of  our 
state  courts.^ ^  But  most  of  the  courts  hold  that  where  an  express  con- 
tract has  not  been  made  by  the  initial  company  to  transmit  the  mes- 
sage to  its  destination,  the  action  must  be  brought  against  the  com- 
pany in  default.^"     In  some  jurisdictions,  the  English  rule  is  so  far 

^Dinimitt   v.    Kansas    City,   etc.,   R.  Trunk   R.    Co.   v.     McMillan,     16    Can. 

Co.,   103  Mo.  433,  15  S.  W.  761;   Wat-  Supt.   Ct.   R.  543. 

kins  V.  St.  Louis,  etc.,  R.   Co.,  44  Mo.  »^  Masher  v.    South.   Ex.   Co..   38   Ga. 

App.   245.  31. 

«» White    V.    Ashton,    51    N.    Y.    280;  "^Illinois   Cen.   R.   Go.   v.   Cowles,   32 

Hinckley  v.  N.  Y.,  etc.,  R.  Co.,  56  N.  ill.   116;  Anchor  Line  v.  Dater,  68  111. 

Y.   429.  369;  Aigen  v.  Boston,  etc.,  R.  Co.,  132 

'"'  Bogg  V.   Wilmington,  etc.,   R.   Co.,  Mass.  423.     While  these  cases  pertain 

14    S.   E.    (N.    C.)    79;    Solon  v.    Chi-  to  connecting  carrier  of  goods,  yet  the 

cago,   etc.,    R.    Co.    (Iowa),   63   N.   W.  same  rule  applies  to  telegraph  compa- 

692.  nies.     In   Smith  v.   West.   U.   Tel.   Co., 

*' Collins  V.  Bristol,  etc.,  R.   Co.,   11  84   Tex.   539,   31    Am.    St.   Rep.    59,   it 

Exeh.    790:    Coxan    v.    Great    Western  was  held  that  the  analogy  of  connect- 

R.    Co.,    5    Hurl.     &    N.     274;     Grand  ing  telegraph   lines  to   connecting   rail- 


§    456]  LIABILITY    I.\    PARTICULAR    CASES.  437 

adopted  as  to  make  the  initial  company  liable  upon  an  implied  con- 
tract for  extra-terminal  liability  where  no  such  contract  would  be  im- 
plied under  the  rule  of  our  country ;  but  there  is  only  one  state  which 
has  adopted  the  English  rule  to  its  fullest  extent.  If,  however,  as  we 
will  hereafter  state,  there  is  any  kind  of  a  partnership  arrangement 
between  the  initial  and  the  connecting  lines,  suits  may  be  brought 
against  either. 

§  455.     Connecting  lines. 

Having  considered  to  some  extent  the  duties  and  liabilities  of  the 
initial  companies,  we  shall  now  say  something  about  the  duties  and 
liabilities  of  connecting  companies;  and  first,  we  shall  see  what  is 
understood  by  the  term  "connecting  telegraph  companies."  A  "con- 
necting telegi-aph  company"  is  one  whose  lines  are  situated  and  ex- 
tend somewhere,  in  whole  or  in  .part,  between  the  initial  line  and 
the  place  to  which  a  message  may  be  desired  to  be  sent.^"*  The  line 
may  be  entirely  between  these  two,  or  the  point  of  destination  may 
be  on  the  line  of  the  connecting  company.  In  order  for  it  to  be  a  con- 
necting line,  there  must  be  another  line  intervening  between  this  one 
and  the  place  at  which  the  message  is  first  tendered  for  transmission. 
In  other  words,  there  must  be  a  connection  between  the  two  lines,  and 
the  connecting  company  must  not  be  on  the  initial  line,  or  the  com- 
pany first  accepting  the  message  for  transmission. 

§  456.     Same  continued — duty  to  accept  messages  tendered. 

It  is  the  duty  of  the  connecting  company  to  accept  all  messages 
tendered  it  by  the  initial  line.  It  is  as  much  the  duty  of  this  com- 
pany to  accept  these  messages  as  it  is  for  the  initial  company  to  ac- 
cept them.  There  have  been  statutes  adopted  in  some  of  the  states 
which  attempt  to  enforce  this  duty,  but  it  is  held  that  these  statutes 
are  only  declaratoiy  of  the  common-law  duty,®^  and  that  it  is  as  much 

ways   is  so  great  that  the  established  » U.    S.    Tel.    Co.    v.    West.    U.    Tel. 

rules  of  law  which   determine  the  lia-  Co.,  56  Barb.    (N.  Y.)    4G;   Bald\Yin  v. 

bility  of  the  latter  should  be  applied  U.  S.  Tel.  Co.,  G  Abb.  Pr.  N.   S.    (N. 

with   equal    force   to   the   former.  V.)     405.      In    the    last    case,    it    was 

"'Ilutcliinson  on    Carriers     (2  Ed.),  licld   that   under   a    statute    requiring 

g    157a.  connecting  telegraph   companies  to   re- 


438  TELEGKAPH   AI\"D   TELEPHONE    COMPANIES.  [<^    456 

the  duty  of  these  companies  as  if  no  statute  had  been  enacted.  It  is 
generally  held,  however  that  this  duty  only  applies  where  the  mes- 
sage is  destined  to  some  point  on  its  line ;  and  that  it  is  not  the  duty 
of  these  connecting  lines  to  accept  a  message  whose  destination  is  at 
some  point  beyond  the  terminus  of  its  line.  If  the  company,  however, 
undertakes,  as  part  of  its  regular  business,  to  transmit  messages  be- 
yond its  terminus,  it  would  be  part  of  its  duty  to  accept  all  messages 
of  like  nature,  but  in  doing  so  it  may  affix  reasonable  conditions  and 
limitations  to  its  liabilities,^^ 

§  457.     Same  continued — duty  of. 

The  duties  of  a  connecting  line  are  similar  to  those  of  the  initial 
company.  Thus,  where  there  is  more  than  one  message  delivered  by 
the  latter  to  a  connecting  line,  it  must  accept  and  transmit  each  in 
the  regular  order  of  time  in  which  they  are  received  without  any  dis- 
crimination. In  some  instances,  on  the  account  of  the  nature  of  the 
message,  there  may  be  an  exception  to  this  rule,  the  same  as  enjoyed 
by  the  initial  line.  It  must  exercise  due  diligence  in  making  a 
prompt  and  correct  transmission  of  the  message,  and  should  use  the 
same  diligence  to  make  a  prompt  delivery  of  it  as  the  initial  line,  if 
the  latter's  line  extends  to  the  point  to  which  it  is  sent.^"  When  it  is 
necessary  to  transmit  the  messages  over  another  connecting  line,  in 

ceive     and     forward     messages,     trans-  Civ.   App.  310,   22   S.   W.   532.     In  the 

mitted  for  the  purpose  upon  each  oth-  case  of  the  West.  U.  Tel.  Co.  v.  Strat- 

er's  line,   a   company  receiving   a  mes-  emeier    (Ind.),  32   N.  E.  871,  plaintiff 

sage  ■  to   be    forwarded,     in     part,    over  asked  the  agent  whether  it  had  a  line 

such  connecting  line,  is  to  be  regarded  and     receiving   station   at     a     certain 

as    authorized    to    make    the    contract  point,    and   upon   being   informed    that 

respecting     its   transmission    for    sucli  it    had,    he    delivered    to    the    agent    a 

line;      and   the   receipt   by   the   former  message    directed   to    such    point,    rely- 

company,    of     an  entire   price   for  the  ing    entirely    on    the    operator's    reprc- 

message    is    a    sufficient    consideration  sontations.     In  an  action  for  failure  to 

for  the   express   or   implied   obligation  deliver  such  message,  it  was  held  that 

resulting  against  such  connecting  com-  the  company     was     estopped     to  deny 


pany. 


that   it   had   no   line   or   receiving   sta- 


'West.  U.  Tel.  Co.  v.  Way,  83  Ala.  tion  at  the  point   named. 

542,  4   So.  844;   Pitlock  v.   Wells,   109  "^Vest.    U.    Tel.    Co.    v.    Lyman,    3 

Mass.    452;    U.    S.    Tel.    Co.    v.    West.  Tex.    Civ.   App.    4G0,    22     S.     W.   656; 

U.    Tel.    Co.,    56    Barb.     (N.    Y.)     40;  Martin    v.    West.    U.    Tel.    Co.,    1    Tex. 

West.    U.    Tel.    Co.    v.    Taylor,    3    Tex.  (^iv.    App.    143. 


§    458]  LIABILITY   IN    PAUTICULAIi   CASES.  439 

order  to  reach  its  dcstiuation,  the  intermediate  or  first  connecting 
line  should  make  a  prompt  delivery  of  the  message  to  this  connecting 
line.®^  As  heretofore  said,  the  sender  may  select  the  connecting  line 
over  which  his  message  should  be  sent,  but  if  for  any  reason  this  line 
selected  refuses  to  accept,  or  cannot  transmit  the  message,  the  con- 
necting company  should  use  reasonable  efforts  to  notify  the  sender  of 
this  fact;  and  if  the  information  cannot  be  imparted  to  him,  then  it 
is  the  duty  of  the  company  to  select  some  other  suitable  route  for  the 
transmission  of  the  message. 

§  458.     Liability  of  connecting  lines. 

The  liabilities  of  the  connecting  company  are  also  somewhat  simi- 
lar to  tliose  of  the  initial  lines.  The  connecting  company's  liability 
does  not,  however,  begin  to  run  until  the  message  has  been  actually 
delivered  to  it.^^  The  connecting  company  cannot,  as  a  rule,  be  held 
for  the  negligence  of  the  initial  or  of  the  other  connecting  lines  in  the 
absence  of  a  partnership,  express  or  implied.  ^'^'^  Thus,  if  a  delay  on 
the  first  line  causes  a  greater  delay  on  the  connecting  line,  the  latter 
will  not  be  liable.  ^^^  If  there  is  a  delay  in  delivering  the  message 
after  it  has  been  transmitted,  the  last  line  will  be  liable.^'^^  But  some- 
times, because  of  the  relation  of  principal  and  agent,  and  more  fre- 
quently because  of  some  partnership  arrangement  existing  between 
the  lines,  one  connecting  line  has  been  held  liable  for  the  negligence 
of  some  of  the  other  lines.  If  several  of  these  companies  have  been 
guilty  of  negligence  in  the  transmission,  tiiat  one  will  be  held  respon- 
sible whose  negligence  was  the  proximate  cause  of  the  loss  complained 
Q^ios     Tli^ig^  whore  the  addressee's  name  is  negligently  changed  by 

»«  Smith  V.  West.  U.  Tol.  Co.,  84  Tex.  Rep.      321;    Lowenburg   v.    Jones,      56 

359,    19   S.    W.   441,   31    Am.    St.   Rep.  Miss.  G88,  31  Am.  Rep.  379;   Baldwin 

o9.  V.  U.  S.  Tel.  Co.,  45  N.  Y.  744,  6  Am. 

»*  Missouri    Pac.    R.    Co.    v.    Wichita.  Rep.   105. 

etc.,    Co.,    55    Kan.    525,   40    Pac.    899:  '"MVeatherford,     etc.,     R.       Co.       v. 

Condon  v.  Marquette,  etc.,  R.   Co.,  55  Seals    (Tex.),  41  S.  W.  841. 

Mich.   218;   Peterson  v.   Case,  21   Fed.  '"^West.    U.    Tel.    Co.    v.    Phillips,    2 

885.  Tex.  Civ.  App.  608,  21  S.  W.  038. 

'°» Montgomery,     etc..      R.       Co.       v.  '"'West.   U.   Tel.   Co.  v.  Munford.  87 

Moore,  51  Ala.  394;   Knott  v.  Raleigh,  Tenn.    190,   10   S.   W.  318,  2   L.   R.   A. 

etc.,   R.   Co.,   98   N.    C.    73,   2   Am.    St.  601n,   10  Am.   St.  Rep.  030. 


440  TELEGEAPII    AND   TELEPHONE    COMPANIES.  ["^    458 

one  of  the  lines,  but  tlie  error  is  corrected  b}'  another  line,  the  negli- 
gence of  the  first  will  not  be  the  proximate  cause  of  the  loss,  if  it  were 
not  otherwise  negligent. 

§  459.     Burden  of  proof. 

It  has  been  held  that  where  a  loss  has  occurred  in  the  transporta- 
tion of  goods,  it  is  presumed  that  the  loss  occurred  on  the  last  con- 
necting line.^°^  But  this  rule  has  been  held  by  many  able  courts  and 
text-writers  to  be  unsound.  ^"^  The  general  rule  of  telegraph  com- 
panies in  this  respect  is,  that,  where  any  connecting  line  is  sued,  the 
presumptions  are  that  it  was  guilty  of  negligence  and  the  burden  is 
upon  it  to  show  that  the  delay  or  error  did  not  occur  on  its  line.^°° 
The  reason  for  holding  to  such  a  rule  is,  that  the  facts  of  its  guilt  or 
innocence  lies  more  within  the  knowledge  of  the  company  than  it 
does  in  the  sender  or  the  injured  party.  As  said  in  a  former  part  of 
this  work,  it  would  be  an  unreasonable  rule  to  require  the  injured 
party  to  show  the  negligence  of  the  company  which  lies  more  pecul- 
iarly within  the  knowledge  of  the  latter.  To  enforce  such  a  rule 
would  be  nothing  more  nor  less  than  the  defeat  of  every  case  brought 
against  these  companies  for  losses  or  injuries.  The  more  reasonable 
rule,  therefore,  would  be,  to  cast  the  burden  of  proof  upon  the  con- 
necting line  sued. 

§  460.     Partnership  arrangements  between  the  several  lines. 

Telegraph  companies  may  have  some  kind  of  partnership  ar- 
rangement, with  respect  to  messages  transmitted  over  their  respective 
lines,  and  when  such  is  the  case  each  will  be  liable  for  the  negligence 
of  the  other.  ^'^^  The  difficulty  in  these  cases  is,  pT^oving  the  partner- 
ship.    This  relation  of  liability  of  connecting  companies    may    exist 

^'^'Tex.,   etc.,   E.    Co.    v.    Adams,      78  4   Tex.   Civ.   App.   217,    IG   S.   W.    184; 

Tex.   372,    14   S.    W.    6G0,   22   Am.    St.  (iulf,  etc.,  R.  Co.  v.  Holder   (Tex.),  30 

Rep.  56;  Lindley  v.  Richmond,  etc.,  R.  S.  W.   383;   Evans  v.  Atlanta,  etc.,  R. 

Co.,     88     N.    C.    r)47;    Savannah,   etc.,  Co.,  .50  Ga.  498;    Goodman   v.    Oregon, 

R.   Co.   v.   Harris,   2G   Fla.    148,   7    So.  etc.,  R.  Co.,  22  Ore.   14,  28  Pac.  894. 
544,   23    Am.    St.    Rep.    551;    Beard   &  '""West.  U.  Tel.  Co.  v.  Munford,  87 

Sons  V.  111.  Cen.  R.  Co.,  79  Iowa  518,  Tcnn.   190,  10  Am.  St.  Rep.  630. 
44  N.   W.   800,    18  Am.   St.   Rep.   381,  '"'Baldwin  v.   U.   S.  Tel.   Co.,  45  N. 

7  L.  R.  A.  280.  Y.  744,  G  Am.  Rep.  165;  West.  U.  Tel. 

"'Missouri  Pac.  R.  Co.  v.  Breeding,  Co.  v.  Lovely,  52  S.  W.  563. 


§    461]  LIABILITY    IN   PAKTICULAK   CASES.  441 

as  to  third  persons  \vithout  its  existence  toward  each  other. ^'^^  But  it 
has  been  held  that  the  mere  fact  of  one  company  regularly  receiving 
messages  to  be  sent  over  its  own  and  that  of  another  line,  was  not  of 
itself  sufficient  evidence  of  a  partnership,  whereby  one  would  become 
responsible  for  the  negligence  of  the  other. ^"^  Yet,  where  these  com- 
panies have  associated  themselves  under  a  contract  for  a  division  of 
the  profits,  made  in  the  contract  for  sending,  in  a  certain  proportion 
of  the  receipts  after  deducting  the  expenses  incurred  in  the  transmis- 
sion of  the  message,  they  become  jointly  liable  as  partners  to  third 
persons.  ^^^  But  'Svhcrc  the  agreement  is  that  each  shall  bear  the  ex- 
penses of  his  own  route,  .  .  .  and  the  gross  receipts  shall  be  di- 
vided in  proportion  to  distance,  they  are  partners  neither  inter  se 
nor  as  to  third  persons,  and  incur  no  joint  liability."  ^^^ 

§  461.     Effect  of  contract  of  sending  on  connecting  lines. 

If  a  connecting  company  is  designated  as  such  in  the  original  con- 
tract for  sending,  or  if  the  blank  form  of  the  company  provides  that 
all  stipulations  therein  shall  enure  to  the  benefit  of  all  the  connecting 
lines,  then,  having  accepted  the  message  thereunder  without  requiring 
any  separate  contract,  it  becomes  virtually  a  party  to  the  contract  and 
is  bound  by  all  the  undertakings  therein  and  benefited  by  all  the  limi- 
tations. ^^^     If,  however,  no  connecting  line  is  designated  in  the  mes- 

^^  Block     V.   Fitchburg  R.   Co.,      139  and  no  claim   of  a     joint     conduct  of 

Mass.  308;   Wyman  v.  Chicago,  etc.,  R.  business:      Chandler   v.    \Yest.   U.   Tel. 

Co.,   4   Mo.   App.    35;    Hood  v.   N.   Y.,  Co.,  94  Ga.  442,  21  S.  E.  832. 

etc.,  R.,  22  Conn.  1;  Brooks  v.  Grand  "^Hutchinson     on     Carriers,     2  Ed. 

Trunk  R.  Co.,  15  Mich.  332.  S   169;  Converse  v.  Norwick,  etc.,  Tel. 

'"» Baldwin  v.  U.  S.   Tel.   Co.,  45  N.  Co.,  32  Conn.    166;   Hot  Springs,  etc., 

Y.  744,  6  Am.  Rep.  165;  West.  U.  Tel.  R.  Co.  v.  Tripp,  42  Ark.  4G5,  48  Am. 

Co.  V.   Stratemeier,  6  Ind.  App.    125.  Rep.  65;   Grass  v.  N.  Y.,  etc.,  R.  Co., 

""Hutchinson    on   Carriers    (2   Ed.),  9P  Mass.  220;   Irwin  v.  Xashville,  etc., 

§169;  Hart     v.     Rensselaer,     etc.,     R.  R.  Co.,  92  111.  103. 

Co.,  S  N.  Y.  37,  59  Am.  Dec.  447;  Pe-  '"West.  U.   Tel.    Co.    v.    Smith,    20 

terson  v.     Chicago,     etc.,   R.     Co.,  80  S    W.  216;   Adams  Ex.  Co.  v.  Harris. 

Iowa  92,  45  N.  W.  573.     An  action  to  120  Ind.  73,  21  N.  E.  340,  7  L.  R.  A. 

recover  is  statutory  penalty,  based  on  214n;  U.  S.  Ex.  Co.  v.  Harris.  51  Ind. 

the  failure  of  the   last  line  to  deliver  127;    St.  Louis,  etc.,  R.   Co.  v.  Weak- 

a     message,     cannot     be       maintained  ley,  50  Ark.  397,  7  Am.  St.  Rep.  104; 

against  such   line  and  the  initial  line  Halliday  v.  St.  Louis,  etc.,  R.  Co.,  74 

jointly,  there  being     no     joint  default  Mo.   154.  41  Am.  Rep.  309;   Maghee  v. 


442  TELEGEAPU   AND   TELEPHONE    COMPANIES.  [§    461 

sage,  but  the  selection  is  left  to  the  initial  company,  and  the  stipula- 
tions contained  in  the  blanks  used  by  the  first  company  do  not  pro- 
vide that  they  will  enure  to  the  benefit  of  any  other  line,  the  connect- 
ing line  cannot  claim  any  benefit  gi'owing  out  of  the  original  con- 
tract. ^^^  And  it  has  been  held  that  where  a  statute  requires  con- 
necting companies  to  accept  messages  from  other  lines,  the  fact  that 
it  has  complied  with  the  statutes  cannot  be  considered  as  a  ratifica- 
tion of  the  original  contract.  ^^^  It  is  seldom  that  the  sender  exer- 
cises the  right  to  select  the  connecting  line,  but  when  he  does,  these 
companies  seldom  acquire  any  of  the  benefits  of  the  original  contract, 
because  there  are  generally  to  be  found  stipulations  in  these  contracts 
which  provide  that  the  company  will  not  be  liable  for  delays  and  er- 
rors beyond  the  terminus  of  its  own  line. 

§  462.     Liability  for  defaults  of  common  agent. 

It  occasionally  happens  that  connecting  telegraph  companies 
have  a  common  agent  or  operator,  and  the  question  is,  Whether  or  not 
they  will  be  jointly  liable  for  his  defaults?  The  question  has  been 
answered — and  correctly  we  think — in  the  affirmative,  but  they  are 
not  liable  for  each  other's  faults.  ^^^  We  think  the  fact  that  he  is  act- 
ing for  both  companies  may  be  considered,  with  other  circumstances, 
as  tending  to  show  a  joint  liability  or  a  partnership  arrangement, 
and  if  they  hold  him  out  as  having  authority  to  make  them  jointly 
liable,  he  may  do  so  in  favor  of  one  who  rightfully  relies  on  the  ap- 
parent authority;  although  in  fact  he  has  no  such  authority.  ^^"^ 

§  463.     Sender's  right  to  select  route. 

As  said  elsewhere,  there  is  generally  a  stipulation  in  the  message 
blanks  to  the  effect  that  the  company  will  not  be  liable  for  delays  and 

Camden,  etc.,  R.  Co.,  45  N.  Y.  514,  G  "*  Gulf,  etc.,  R.  Co.     v.     Bwyer,     75 

Am.   Eep.    125;    West.   R.   Co.   v.   Har-  Tex.  572,  7  L.     R.     A.     478;     Same  v. 

well,   97   Ala.   341,   11    So.   781.  Baird,  75  Tex.  256,  12  S.  W.  530. 

"=>  Squire  v.  West.  U.  Tel.  Co.,  98  ^'^  jj,jt(.}jinson  on  Carriers  (2  Ed.), 
Mass.  232,  93  Am.  Dec.  157.  See,  also,  §  169;  Smith  &  Elliott  v.  Mo.,  etc.,  R. 
Adams  Ex.  Co.  v.  Harris,  120  Ind.  73,  Co.,  58  Mo.  App.  80. 
21  N.  E.  340,  7  L.  R.  A.  214n;  Ban-  "« Midland  Railway  v.  Bromley,  17 
croft  V.  Merchants',  etc.,  Co.,  47  Iowa  Com.  B.  372;  Chicago,  etc.,  R.  Co.  v. 
262,  29  Am.  Rep.  482;  Cen.  R.,  etc.,  Northern,  etc.,  Co.,  70  111.  217;  South- 
Co.  V.  Bridger,  94  Ga.  471,  20  S.  E.  western,  etc.,  Tel.  Co.  v.  Taylor,  26 
349.  Tex.  Civ.  App.  79. 


^    465]  LIABILITY   IX    PARTICULAE  CASES.  44;j 

errors  made  beyond  the  terminus  of  its  own  line,  and  will  only  act  as 
the  sender's  agent  to  engage  the  services  of  another  connecting  line. 
When  this  is  the  case,  it  is  the  right  of  the  sender  to  name  the  route 
the  message  shall  go  after  it  reaches  the  terminus  of  the  initial  line. 
It  was  decided  in  a  case  on  this  subject,  where  the  destination  could 
be  reached  from  the  company's  terminus  by  two  telephone  lines,  that 
the  sender  had  the  right  to  indicate  which  line  should  be  used,  al- 
though it  was  the  rule  of  the  company  that  the  message  should  be  sent 
over  the  nearest  line  that  was  open,  and  that  it  was  negligent  in  the 
company  to  use  the  other,  in  consequence  of  which,  a  delay  occur- 
red. ^^"  Should  the  sender  neglect  to  exercise  the  right  of  selecting 
the  route,  or  if  the  route  selected  cannot  for  any  cause  transmit  the 
message,  and  the  company  has  unsuccessfully  attempted  to  inform  the 
sender  of  this  fact,  it  should  exercise  ordinary  judgment  in  selecting 
a  route  for  the  sender  and  promptly  deliver  the  message  to  this  line 
with  the  instruction  to  forward  it  on  to  its  destination.  ^^^ 

§  464.     Same   continued — result    of    bad    selection — initial     com- 
pany— not  liable. 

The  initial  company,  in  the  absence  of  any  partnership  arrange- 
ment, only  represents  the  sender  in  the  capacity  of  agent  so  far  as  to 
the  selection  of  the  connecting  route  over  which  the  message  must 
necessarily  be  sent  in  order  to  reach  its  destination.  It  must  comply 
with  the  instructions  of  the  sender,  and  it  is  not  liable  for  errors 
made  by  the  latter  in  the  way  of  a  bad  selection.  So,  if  the  sender 
has  selected  a  certain  route,  the  initial  company  will  not  be  liable  for 
any  delays  in  consequence  of  such  selection.  The  initial  company 
may  know  it  to  be  a  mistake  of  the  sender  in  making  the  selection, 
but  it  is  under  no  duty  to  adopt  another  route  when  it  knows,  at  the 
time  of  sending,  that  the  selected  route  is  not  opened.^^^ 

§  465.     Same  continued — exact  extra  fee  or  charges. 

When  the  sender  has  selected  the  route,  this  necessarily  puts  the 
company  to  some  additional  expense,  and  increases  their  duties  to  the 

"'West.    U.    Tel.    Co.    v.    Turner.    94  ""West.     U.  Tel.   Co.  v.  Sininis,     30 

Tex.  304,  60  S.  W.  432.  lex.  Civ.  App.  32.  00  S.  W.  464. 

"'Mitchell  V.  West.  U.  Tel.  Co..   12 
Tex.  Civ.  App.  262,  33  S.  W.   1010. 


444  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [^    465 

extent  that  the  wishes  of  the  sender  must  be  carried  out ;  and,  while 
the  expense  and  additional  liability  of  the  company  have  been 
slightly  increased,  yet  it  seems  but  right  that  they  may  require  of  the 
sender  a  small  additional  charge  to  cover  this.^^^  One  of  the  addi- 
tional expenses  incurred  in  the  transmission  of  such  messages  is,  that 
the  name  or  names  of  the  connecting  lines  must  be  transmitted  along 
with  the  message,  and  this  of  course  creates  an  extra  trouble  and  ex- 
pense. 

§  466.     Liability  of  companies  between  themselves — actions. 

As  said  before,  connecting  companies  may  be  liable  to  third  per- 
sons as  partners,  when,  as  between  themselves,  they  are  not  partners, 
and  any  private  arrangement  made  between  themselves  may  bind 
them  without  affecting  their  liability  toward  third  persons.  The  sen- 
der may  institute  suit,either  against  the  initial  company  whose  liabil- 
ity extends  beyond  its  own  terminus,  or  he  may  sue  the  connecting 
company  guilty  of  the  default;  but,as  between  the  companies,the  gen- 
eral rule  is  that  each  is  liable  for  its  own  negligence  or  breach  of 
duty.  And  while  the  initial  company  may  have  assumed  the  respon- 
sibility for  the  transmission  of  the  message  beyond  its  own  line,  and 
damages  may  be  recovered  against  it  for  the  default  of  the  connecting 
line,  yet  the  company  which  actually  caused  the  injury  will  be  liable 
to  the  first  for  such  damages.  ^-^  If  the  company  guilty  of  the  de- 
fault is  duly  notified  to  come  into  court  and  defend  an  action  against 
the  initial  line  for  such  injury ;  or,  it  seems,  if  it  is  not  expressly  no- 
tified to  defend  but  knows  that  it  alone  caused  the  injury  and  is  lia- 
ble, and  is  aware  of  the  pendency  of  such  a  suit  and  its  right  to  de- 
fend against  the  initial  company  for  such  injury,  the  judgment 
against  the  latter  therein  will  be  conclusive  against  the  connecting 
line  to  the  amount  of  damages  recovered  from  the  initial  company.  ^"- 
"While  a  contract,  made  by  the  sender  and  the  initial  company  to 
transmit  a  message  over  a  certain  connecting  line,  may  be  of  benefit 

'^  U.  S.  V.  Nortliern  Pac.  R.  Co.,  120  inont,  etc.,  R.  Co.  v.  Fitchburg  R.  Co., 

Fed.   546.  14  Allen    (Mass.)    462. 

^Mo.  Pac.  R.  Co.  V.  Twiss,  35  Xeb.  "='Mo.  Pac.  R.  Co.  v.  Twiss,  35  Neb. 

267,  53  N.  W.  76;  Chicago,  etc.,  R.  Co.  267,  53  N.  W.  76.     See,   also,  Elliott 

V.  Northern,  etc.,  Co.,  70  111.  217;  Ver-  on  Roads  and  Streets,  656,  657. 


*§    466]  LIABILITY   IN   PARTICULAK   CASES.  445 

to  the  latter,  jet  it  is  not  a  contract  for  its  benefit  in  such  a  sense  as 
will  give  the  connecting  company  a  right  of  action  against  the  initial 
company  for  violating  the  contract,  by  delivering  the  message  to  an- 
other connecting  line.^-^ 

'=*St.  Louis,  etc.,  R.  Co.  v.  :Mo.  Pac. 
R.  Co.,  35  Mo.  App.  272. 


CHAPTER  XIX. 

ACTIONS  FOR  DAMAGES  RESULTING  FROM  NEGLIGENT 
DELAYS  OF  TRANSMISSIONS. 

§  467.  Parties — sender — in   general. 

468.  Same   continued — sender — action   in  tort  or  contract. 

469.  Same  continued — message — sent  by  agent. 

470.  Addressee — right  of  action — in  general. 

471.  Same  continued — grounds  on  which  rules  are  based. 

472.  English  rule — in  general. 

473.  Rule  applicable  to  telegraph  companies. 

474.  American  rule — in  general. 

475.  Same  continued — with  respect  to  telegraph  companies. 

476.  Addressee  beneficial  party. 

477.  Same  continued — sender  agent  of  addressee. 

478.  Action  for  breach  of  public  duty. 

479.  Same  continued — action  in  contract  or  tort. 

480.  Same  continued — damages  under  either. 

481.  Agent  for  addressee. 

482.  Right  under  statute. 

483.  Right  of  action — altered  message. 

484.  Sender  paying  charges — effect  upon  the  addressee's  right. 

485.  Third  party — right  of  action. 

486.  Under  special  statutes — penalty. 

487.  Addressee's  right  not  affected— by  failure  to  have  message- 

repeated. 

488.  Actions  between  sender  and  addressee. 

489.  Contract  made  where  last  act  of  assent  was  done. 

490.  Same   continued— actions   between   sender   and   addressee — 

contract — where  made. 

491.  Same  continued — action  where  brought. 

§  467.     Parties — sender — in  general. 

After  having  discussed,  at  some  lengtli,  the  liabilities  of  telegraph 
companies  for  losses  occurring  in  negligently  transmitting  or  deliver- 
ing messages,  we  shall  now  discuss  actions  growing  out  of  such  neg- 
ligence. In  discussing  this  subject  we  shall  first  take  up  the  rights  of 
certain  persons  to  sue,  and  then  the  nature  of  the  action.  In  com- 
menting on  the  last  subdivision  of  this  subject,  we  shall  consider  the 
rights  of  the  sender  to  sue.  The  sender  of  a  message  may  always 
maintain  an  action  against  a  telegraph  company  to  recover  damages 

(446) 


§    468]  ACTIONS    FOR   DAMAGES.  447 

resulting  from  a  negligent  transmission  or  delay  of  the  message/  but 
the  questions  with  which  the  courts  have  been  confronted  are,  What 
is  the  nature  of -the  action  to  bo  maintained,  and  who  is  the  rightful 
person  to  be  considered  as  the  sender  ?  -  In  many  instances  the  right- 
ful sender  is  represented  in  making  the  contract  by  an  agent.  Should 
the  undisclosed  principal  in  the  contract  bring  the  action,  or  is  it  the 
duty  of  the  agent  who  sends  the  message  ? 

§  468.     Same  continued — sender — action  in  tort  or  contract. 

It  has  been  held  that  a  telegraph  company  was  the  agent  of  both 
the  sender  and  sendee,^  and  that  either  could  maintain  an  action 
against  it  for  its  negligence.  The  prevailing  view,  however,  is,  that 
it  is  not  an  agent  for  either  of  these  parties,  but  is  an  independent 
principal,  and  one  of  a  public  nature.^  They  are  institutions  incor- 
porated to  perform  public  functions,  and  in  discharging  these,  they 
must  exercise  reasonable  and  ordinary  care  and  diligence ;  for  a  fail- 
ure to  do  so,  they  will  be  liable  in  damages  to  the  party  thereby  in- 
jured.^ So,  if  a  party  contracts  with  one  of  these  companies  to  trans- 
mit a  message  to  a  certain  place,  and  it  fails  to  exercise  care  in  the 
transmission,  whereby  the  sender  suffers  loss,  he  may  recover  damages 
for  such  loss.^  It  has  been  held  by  some  courts  that,  when  a  contract 
was  made  with  one  of  these  companies  to  send  a  message  and  it  negli- 
gently transmitted  or  delayed  in  delivering  the  message,  the  com- 
pany was  guilty  of  a  breach  of  contract  and  the  sender's  action  should 
be  in  contract.  But  the  weight  of  authority  is  that  the  sender  may 
maintain  an  action  for  the  breach  of  the  contract,  or  he  may  proceed 
•against  the  company  for  the  breach  of  its  public  duty  or  sue  in  tort.''^ 
We  are  inclined  to  think  that  the  latter  view  is  the  correct  one. 

^Playford  v.  United  Kingdom,  etc.,  14  Am.  St.  Rep.  556.  See,  also,  Chap- 
Tel.  Co.,  L.  R.  4  A.  B.  706,  10  B.  &  ter  on  Contracts  made  by  telegraph 
S.   759.  companies. 

=  West.    U.    Tel.    Co.    v.    Brown,    108  *  Alexander  v.  West.  U.  Tel.  Co.,  66 

Ind.  538;  West.  U.  Tel.  Co.  v.  Kinney,  Miss.   161,  3  L.  R.  A.  71,   14  Am.  St. 

106  Ind.  468.  Rep.  556,  5  So.  397. 

^N.  Y.  &  W.     Printing    Tel.     Co.  v.  "Gray  v.  Tel.  Co.,   108  Tenn.  39,  64 

Dryburg,  35  Pa.   St.  298,  78  Am.  Dec.  S.   W.   1063,  91   Am.   St.   Rep.   706,   56 

338.  L.  R.  A.  301n. 

*  Alexander  v.  West.  U.  Tel.  Co.,  66  ^  Shingleur  v.   West.  U.  Tel.  Co.,  72 

Miss.    161,   5   So.   397.   3   L.   R.   A.   71,  Miss.   1030,   18  So.  425,     30     L.  R.  A. 


448  TELEGKAPH  A^•l)   TELEPHONE   COMPANIES.  [*§,    469 

§  469.     Same  continued — message — sent  by  agent. 

The  most  difficult  question  \vliich  has  come  up  in  reviewing  this 
subject  is,  Who  should  maintain  the  suit  when  the  message  is  sent  for 
an  undisclosed  principle  ?  It  has  been  generally  held  by  most  of  the 
courts  that  the  agent  cannot  maintain  the  suit  unless  he  is  interested 
in  the  contract,  but  that  it  is  the  duty  of  the  principal  to  bring  the  ac- 
tion. The  person  who  sends  the  message,  or  the  person  with  w^hom 
the  contract  was  made,  is  the  proper  party  to  recover  damages  for  its 
breach ;  and  he  may  recover  in  his  own  name,  although  the  message 
was  signed  by  another  person  as  his  agent.^  The  principal  is  entitled 
to  all  the  advantages  and  benefits  of  the  contract  made  by  his  agent ; 
and  the  fact  that  the  company  only  contracted  with  the  agent,  and 
had  no  knowledge  that  the  plaintiff  was  in  fact  the  principal,  is  im- 
material, except  that  it  might  set  up  as  a  defense  any  matter  occur- 
ring prior  to  the  disclosure  of  the  principal  and  which  would  consti- 
tute a  defense  in  a  suit  by  the  agent.^  The  principal  may  sue  upon 
a  contract  made  by  his  agent  without  giving  notice  of  his  interest,  al- 
though the  other  party  supposed  the  agent  was  acting  solely  for  him- 
self.^" So,  a  telegraph  company  need  not  be  informed  that  the  sen- 
der of  a  telegram  is  acting  as  the  agent  for  another,  where  it  is  not 
shown  that  the  company  would  have  acted  differently  had  it  known 
of  the  agency  of  the  sender. -"^^    But  where  one  party  writes  a  dispatch 

444,  48  Am.   St.  Rep.   604;    Francis  v.  making  the  negligence  of  the  company 

West.    U.    Tel.    Co.,   58   Minn.   252,   49  the  ground  of  his   right  of  recovery." 

Am.  St.  Rep.  507,  59  K  W.   1078,  25  « Young  v.  West.  U.  Tel.  Co.,  107  N. 

L.  R.  A.  406;  McPeek  v.  West.  U.  Tel.  C.    370,    11    S.  E.    1044,    22    Am.    St. 

Co.,     107  Iowa  362,   10  Am..  St.     Rep.  Rep.  883,  9  L.  R.  A.  669n;   Thompson 

205,   78   K   W.   63,   43   L.   R.   A.   214.  v.  West.  U.    Tel.    Co.,    107   N.    C.    449, 

See,   also,    Brown   v.    Chicago,   etc.,   R.  12  S.  E.  427;   Dougherty  v.  American 

Co.,  54  Wis.  342,  41  Am.  Rep.  41,   11  U.  Tel.  Co.,  75  Ala.  168,  51  Am.  Rep. 

N.  W.  356,  911.     In  this  case  the  court  435. 

said:     "All  these  matters  are  a  breach  *Harlaiess  v.   West.  U.   Tel.   Co.,   73 

of  contract     to     carry     the  passenger  Iowa    190,    34   N.   W.   811,   5  Am.    St. 

safely,  yet  the  carrier  is  hold  liable  in  Rep.   672. 

an  action  for  tort,     ....     All  the  "Foster  v.  Smith,  2  Colwell   (Tenn.) 

cases     hold     that  the     person     injured  474,  88  Am.  Dec.  604;  Shapp  v.  Jones, 

through   the  negligence  or  carelessness  18  Ind.  314,  81  Am.  Dec.  359. 

of  the  carrier  may  proceed  either  upon  "  West.  U.  Tel.   Co.   v.   Broesche,  72 

the    contract,      alleging     the   negligent  Tex.    654,    10    S.    W.    734,    13    Am.    St. 

act  of  the  defendant  as  a  breach  of  the  Rep.   843. 

contract,   or   he   may   proceed   in   tort, 


i§    471]  ACTIONS    FOlt    DAMAGES.  449 

and  gives  it  to  anorlur  to  soiul,  who,  instead  of  sentling  it,  writes  an- 
other and  signs  and  sends  it  without  notifying  the  company  that  it  is 
sent  on  behalf  of  tlie  first  party,  the  latter  cannot  hold  the  company 
liable  in  damages  for  losses  sustained  through  failure  of  delivery. '- 
There  are  some  instances  where  the  agent  may  sue  in  his  own  name 
for  the  breach  of  a  contract  made  by  him  for  the  principal ;  as  where 
lie  is  interested  in  the  contract  to  the  extent  of  his  commission,  or  by 
reason  of  a  special  i)roperty  in  the  subject-matter.^-'*  So,  a  broker 
may  sue  a  telegraph  company  in  his  own  name  for  a  breach  of  con- 
tract to  transmit  an  order  in  his  name,  in  behalf  of  his  principal,  for 
the  purchase  of  gold.  In  such  a  case,  however,  he  sues  and  recovers 
as  tnistee  for  his  principal.^'* 

§  470.     Addressee — right  of  action — in  general. 

One  of  the  most  difficult  questions  with  w'hich  the  courts  and  text- 
writers  have  been  confronted,  and  one  which  has  not  been  settled  with 
any  degree  of  harmony,  is.  The  rights  of  addressees  to  maintain  suits 
against  telegraph  companies  for  negligently  transmitting  or  deliver- 
ing a  message,  or  for  delivering  a  forged  or  fraudulent  message,  and 
also  the  nature  of  the  action  to  be  brought.  There  are  two  general 
rules  upon  which  the  rights  of  the  addressee  have  been  based.  Th€^y 
are  known  as  the  English  Rule  and  the  American  Rule.  Some  of  our 
■courts,  seemingly  becoming  confused,  have  to  a  certain  extent  fol- 
lowed both  of  these  rules ;  and  for  this  reason  their  decisions  are  not 
at  all  in  harmony,  nor  very  clear  in  their  reasons.  We  shall  attempt, 
in  a  few  of  the  following  pages  of  this  work,  to  describe  these  rules 
and  the  grounds  on  which  each  is  based,  where  each  has  been  fol- 
lowed, and  if  possible,  harmonize  the  various  holdings  of  the  courts. 

§  471.     Same  continued — grounds  on  which  rules  are  based. 

Before  entering  into  the  discussion  of  either  of  these  rules,  it  is 

necessary-  to  discuss  the  grounds  upon  which  each  is  based.  The  gen- 
;>>  •>  '  ■ 

'-Elliott    V.    West.    U.   Tel.   Co.,    75       Benedict,  5  Gray   (Mass.)    ofil.  66  Am. 
Te.K.  18,  12  S.  W.  954,  IG  Am.  St.  Rep.       Dec.  384. 
S72.  '*  United   States   Tel.    Co.    v.    Gilder- 

"  Goodman   v.   Walker,   30   Ala.    482.       sleeve,   29   Md.   232,   96   Am.   Dec.   510. 
<J.S    Am.   Dec.    134;    Eastern   K.    Co.    v. 
T.  &  T.— 29 


450  TELEGRAPH  AXD  TELEPHONE   COMPx^-XIES.  l^    471 

eral  rule  recognized  everj'^vbere,  subject  to  certain  exceptions  in  some 
jurisdictions,  is,  that  a  contract  cannot  confer  rights  on  a  person  who 
is  not  a  party  to  it,  and  accordingly  no  one  can  sue  for  a  breach  of  a 
contract  who  is  not  siicli  party,  or  who  does  not  derive  rights  from  an 
original  party  thereto.  This  rule  is  recognized  in  England  almost 
to  its  full  extent,  subject  to  the  exception  that  if  the  promisor  of  the 
contract  stands  in  the  relation  of  trustee  to  a  third  person,  the  latter 
may  sue  in  equity.  On  the  other  hand,  exceptions  are  made  in  the 
United  States  to  contracts  which  confer  a  benefit  on  third  persons. 
In  these  courts  it  is  generally  held  that  a  third  person  benefited  by 
such  contract  may  sue  in  law  on  such  contract.  These,  then,  are  the 
gi'ounds  upon  which  these  rules  have  been  founded.  It  is  worthy  of 
notice,  however,  that  the  early  English  cases,  upon  which  the  Ameri- 
can doctrine  was  founded,  have  in  England,  been  overruled  by  later 
decisions,  so  that  they  are  not  at  present  authority  upon  the  question 
in  that  country. 

§  472.     English  rule — in  general. 

In  England,  the  rule  is  that  a  third  person  cannot  sue  upon  a 
promise  for  his  benefit  where  he  is  a  stranger  both  to  the  promise  and 
the  consideration.^^  In  some  of  the  early  cases  decided  in  that  coun- 
try, it  was  held  that  if  the  third  person  had  an  interest  in  such  con- 
tract, and  stood  in  a  close  relation  to  the  party  from  whom  the  con- 
sideration proceeded,  he  might  be  considered  a  party  to  the  contract 
and  could,  therefore,  maintain  an  action  thereon. ^^'  This  latter  view  is 
no  longer  the  law  in  that  country.  The  court  overruling  this,  said : 
"The  modern  cases  show  that  the  consideration  must  move  from  the 
party  entitled  to  sue  upon  the  contract.  It  would  be  a  monstrous 
proposition  to  say  that  a  person  Avas  a  party  to  the  contract  for  the 

"1   Strange  592;   Prico  v.  Easton,  4  that  the  daughter  might  sue  upon  his 

Barn  &   Adol.   433.  promise    for    her    benefit,    since    "there 

"Button   V.    Poole,    2   Lev.    210.      In  were  such     apparent     consideration  of 

this  case,  a  son  promised  his  father  to  affection  from   the   father  to  his  chil- 

pay  one  thousand  pounds  to  his  sister,  dren,  for  whom  nature  obliges  him  to 

in  consideration   of     the     father's  for-  provide,  that  the  consideration  and  the 

bearing  to   sell   a  certain   wood,   which  piomise  to   the     father     may  well   ex- 

the   father    intended    doing   to    raise    a  tend  to  the   children." 
portion  for  his  daughter.     It  was  held 


(^    473]  ACTIONS  FOR  DAMAGES.  1  •  J  1 

purpose  of  suing  upon  it  for  bis  own  advantage,  an<l  not  a  party  to  it 
for  the  purpose  of  being  sued."^'  As  said,  tbe  English  rule  recognizes 
one  exception  to  this  general  rule.  If  the  contract,  although  in  form 
with  the  promisor,  is  intended  to  secure  some  benefit  to  the  third  per- 
son, so  that  the  latter  is  entitled  to  say  that  he  has  a  beneficial  right 
as  a  cestui  que  trust  under  the  contract,  then  the  third  person  may  in 
equity  enforce  the  contract.  ^^  It  is  a  question  of  interpretation  as  t<j 
whether  an  enforcible  trust  has  been  created. ^^  It  was  held,  in  de- 
ciding the  enforcibility  of  such  trusts,  that  where  a  mere  agreement 
was  made  between  two  parties,  whereby  one  was  to  pay  a  third  person 
this  gave  the  latter  no  right  of  action  against  the  party  promising  to 
pay.2« 

§  473.     Rule  applicable  to  telegraph  companies. 

Following  the  trend  of  this  rule,  the  general  rule  in  England  with 
respect  to  contracts  made  with  telegraph  companies  is,  that  the  right 
of  action  for  negligently  transmitting  or  delaying  a  message  is 
founded  upon  the  contract  of  sending  made  betAvten  the  sender  as  one 
party  to  the  contract,  and  the  telegraph  company  as  the  other;  and 
the  addressee,  not  being  a  party  to  the  contract,  cannot  sue.-^  In 
cases  tried  in  that  country  on  this  subject,  it  seems  that  the  plaintiffs 
carried  on  a  business  as  merchants  at  Valparaiso,  and  were  a  branch 
house  of  a  firm  at  Liverpool.  A  telegraph  company,  through  the  neg- 
ligence of  its  agent,  misdelivered  a  telegraphic  message  to  the  plain- 
tiffs. The  message  purported  to  be  from  the  plaintiffs'  Liverpool 
house,  and  to  be  a  large  order  for  barley,  but  in  fact  it  was  not  from 
the  Liverpool  house  nor  intended  for  the  paintiffs.  The  plaintiffs 
executed  the  supposed  order  and,  having  suffered  a  heavy  loss  in  con- 
sequence, claimed  damages  against  the  company.  The  court  held  in 
this  case  that  they  were  not  entitled  to  maintain  this  action,  as  there 
was  no  contract  between  them  and  the  company.-^  It  was  intimate<l 
in  this  case  that  if  there  was  any  fraud  perpetrated  on  the  part  of 

"Tweddle  V.  Atkinson,   1   Dest.  &  S.  -' Playford   v.   United  Kingdom,  etc., 

393.  Tel.   Co.,   10  B.  &.   S.   759,  L.  R.   4  Q. 

'•Gaudy  v.  Gaudy,  30  Ch.  Div.  57.  B.   706:    Dixon  v.   Router's  Tel.  Co.,  2 

"Murray  v.  Flavell,  2  Ch.  Div.  89.  C.   P.  Div.   02;    10   Moak's  Rep.  313. 

■-■^Gaudv  V.  Gaudv,  30  Cli.  Div.  57.  "See  last  case  cited  in  note  21. 


452  TELEGRAPH   AND  TELEPHONE   COMPANIES.  [§    473 

the  company,  the  receiver  might  sue.  If  the  sender,  however,  is  act- 
ing as  agent  for  the  addressee,  the  Litter  may  sue,  since  the  contract 
of  sending  was  made  for  his  benefit,  or,  rather,  it  was  made  for  him 
by  his  agent.-^ 

§  474.     American  rule — in  general. 

As  was  said  before,  the  decisions  in  the  United  States  followed 
those  early  English  cases  which  have  long  since,  in  that  country,  been 
overruled  and  are  no  longer  authority  in  their  courts.  The  English 
iiile,  with  respect  to  contracts  of  private  individuals,  is  recognized  in 
but  few  of  the  United  States,  and  in  some  of  these  exceptions  have 
been  grafted  upon  it.-^  The  American  rule  is  that  a  third  party  has 
a  right  of  action  upon  a  promise  made  for  his  benefit,  although  he  is 
a  stranger  both  to  the  promise  and  to  the  consideration.  It  has  been 
held  that,  in  order  to  make  this  rule  binding,  there  must  be  two  con- 
ditional elements  in  the  contract:  Eirst,  there  must  be  an  intent  to 
benefit  the  third  party ;  and,  second,  the  promisee  must  owe  some  ob- 
ligation to  the  third  party.- ^  If  both  of  these  elements  do  not  exist, 
the  third  party  has  no  right  of  action  upon  the  contract.  The  cases 
are  numerous  in  holding  that  an  incidental  or  indirect  benefit  to  a 
third  party  is  not  sufficient  to  give  a  right  of  action  to  him.  There 
must  be  an  intent  on  the  part  of  the  contracting  parties  that  the  third 
pary  shall  be  benefited.-*'     Under  these  holdings,  it  is  not  necessary 

^Playfoid  V.   United  Kingdom,  etc.,  Savings  Bank     v.     Thornton,  112  Cal. 

Tel.   Co.,   10   B.  &.   S.   759,  L.   R.  4  Q.  255,  44  Pac.  466;  Burton  v.  Larkin,  36 

B.   706.  Kan.    246,    18    Pac.    398,    59   Am.   Rep. 

^The  states  recognizing  the  English  541;   Padueah  Lumber  Co.  v.  Paducah, 

rule  in  some  form  are  Georgia,  Massa-  etc.,  Co.,  89  Ky.  340,  12  S.  W.  554,  7 

chusetts,    :\Iichigan,    New      Hampshire,  L.    R.    A.    77,    25    Am.    St.    Rep.    536; 

North     Carolina,     Vermont,     Virginia  Howsmon     v.   Trenton,   etc.,   Co.,      119 

and  Wyoming.  Mo.    304,   23    L.    R.    A.    146n,   41    Am. 

"Vrooman  v.  Turner,  69  N.  Y.  280,  St.    Rep.    64;    Jefferson     v.     Arch,     53 

25  Am.   Rep.    195;   ToAvnsend  v.  Rock-  Minn.  446,  55  N.  W.  604^  25  L.  R.  A. 

ham,  143  N.  Y.  516;'  Coleman  v.  Hiler,  257n,  39  Am.  St.  Rep.  618;  Cincinnati, 

85  Hun     547;     Embler     v.     Hartford  etc.,  R.   Co.   v.   Bank,  54  Ohio  St.   60, 

Steam,  etc.,  Ins.  Co.,  158  N.  Y.  431,  44  31  L.  R.  A.  653,  42  N.  E.  700,  56  Am. 

L,  R.  A.  512.  St.  Rep.   700;    Brown  v.  Markland,   16 

=*^  Thomas   ]Mfg.    Co.   v.   Prather,      60  Utah    360,    07    Am.    St.    Rep.    029,    52 

Ark.  27,  44  S.  W.  218;   Chung  Kee  v.  Pac.   597. 
Davidson,    73    Cal.    522,    15    Pac.    100; 


§  475] 


ACTIONS    l(->]t    DAMAGES. 


453 


tliat  tlie  third  party  to  Ik'  Ijciiofited  should  Ix'  naiiKMl ;  it  must  clearly 
ai)pear,  liowever,  that  lio  was  intended  to  be  benefited.-'^  And  it  is 
held,  in  some  jurisdictions,  that  there  must  be  such  an  acceptance  by 
the  third  party  to  the  contract  as  will  release  the  promisee  from  any 
obligations  he  may  be  under  to  the  third  party.-^  Where  the  third 
]>arty  sues  upon  these  contracts,  he  will  be  subject  to  the  equities  that 
may  exist  between  the  oi-iiiiiial  parties  to  the  agreement.^^ 

§  475.     Same  continued — with  respect  to  telegraph  companies. 

The  English  rule  with  respect  to  private  contracts,  as  stated,  is  fol- 
lowed to  a  certain  extent  in  some  of  our  coui*ts,  but  with  respect  to 
contracts  made  with  telegi'aph  companies  for  transmission  of  mes- 
sages, it  has  never  been  adopted  or  followed  by  any.  It  has  always 
In-en  held  that,  where  a  telegraph  company  has  negligently  trans- 
mitted or  delayed  delivering  a  message  the  receiver  or  addressee 
could  maintain  his  action  against  the  company  when  he  could  prove 
actual  damages.^*^  It  is  not  even  intimated,  either  in  England  or  in 
the   United    States,  but   that  the   sender   may   maintain   an   action 


-'  Chung  Kee  v.  Davidson,  73  Cal. 
522,  15  Pac.  100;  Bristow  v.  Lane,  21 
111.  194;  Burton  v.  Larkin,  36  Kan. 
246,  59  Am.  Rep.   541,   13   Pac.   398. 

-«Ranisdale  v.  Horton,  3  Pa.  St.  330; 
Stone  V.  Justice,  9  Phila.  22.  It  is 
not  the  general  rule,  however:  Ray  v. 
Williams,  112  111.  91,  54  Am.  Rep. 
209.  The  assent  will  be  presumed: 
Rogers  v.  Gasness,  58  Mo.  589. 

-■«  Dunning  v.  Learvitt,  85  N.  Y.  30, 
39  Am.  Rep.   617. 

™West.  U.  Tel.  Co.  v.  Dubois,  128 
111.  248,  21  N.  E.  4,  15  Am.  St.  Rep. 
109;  West.  v.  West.  U.  Tel.  Co.,  39 
Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep. 
530;  May  v.  West.  U.  Tel.  Co.,  112 
Afiiss.  90;  Do  La  Grange  v.  South- 
western Tel.  Co.,  25  La.  Ann.  »83 : 
West.  U.  Tel.  Co.  v.  Allen,  60  Miss. 
549.  6  So.  461:  West.  U.  Tel.  Co.  v. 
Long^vill  (N.  M.),  10  Am.  St.  Rep. 
699;  IV  Rutte  v.  New  York,  etc.,  Tel. 
Co.,    1    Daly    547,    30    How.    Pr.    403; 


Wulf-skehl  V.  W'est.  U.  Tel.  Co.,  46 
Hun  (N.  Y.)  542;  ]\rilliken  v.  West. 
U.  Tel.  Co.,  110  N.  Y.  403;  Young  v. 
W^est.  U.  Tel.  Co.,  107  N.  C.  370,  11 
S.  E.  1044,  9  L.  R.  A.  669n,  22  Ara. 
St.  Rep.  883 ;  New  York,  etc..  Printing 
Tel.  Co.  V.  Dryburg,  35  Pa.  St.  298, 
78  Am.  Dec.  338;  Aiken  v.  West.  U. 
Tel.  Co.,  5  S.  C.  358;  Wadi?worth 
V.  \Vest.  U.  Tel.  Co.,  86  Tenn.  695,  8 
S.  \\-.  574,  6  Am.  St.  Rep.  864;  W^est. 
U.  Tol.  Co.  V.  Beringer,  84  Tex.  38,  19 
S.  W^  336;  West.  U.  Tel.  Co.  v.  Jones, 
SI  Tex.  271;  Martin  v.  W^-^t.  U.  Tel. 
Co..  1  Tex.  Civ.  App.  143,  20  S.  W. 
SCO;  Abraham  v.  West.  U.  Tel.  Co.,  11 
Sowy.  (U.  S.)  28.  The  rule  in  Cana- 
dian courts  is  the  same,  and  the  re- 
ceiver is  allowed  to  recover.  Watson 
v.  .Montreal  Tel.  Co.,  5  Mont.  Leg. 
News  87 ;  Bell  v.  Dominion  Tel.  Co., 
3  Mont.  Leg.  News  406,  25  L.  C.  J. 
248. 


454 


TELEGRAPH  AND   TELEPHOISrE   COMPANIES. 


[§  47. 


against  a  telegraph  company  for  a  breach  of  the  contract  of  sending ; 
and  it  has  been  held,  in  our  courts,  that  these  companies  are  as  much 
responsible  for  their  negligence  to  a  person  to  whom  a  message  is  ad- 
dressed as  they  are  to  the  sender.-^  ^  While  there  is  no  dispute  among 
the  courts  as  to  the  rights  of  the  addressee  to  sue,  yet  the  question 
which  has  puzzled  the  courts  the  most  is  as  to  the  nature  of  the  suit 
to  be  brought,  whether  ho  should  sue  in  contract  or  in  tort.  The 
courts  have  stated  various  grounds  on  this  doctrine,  and  we  shall  now 
proceed  to  give  some  of  them. 

§  476.     Addressee  beneficial  party. 

One  ground  upon  which  the  courts  hold  that  the  addressee  may 
maintain  a  suit  against  a  telegraph  company  for  its  negligence  in 
the  transmission  of  a  message  is,  that,  where  a  contract  is  made  by 
two  parties  for  the  benefit  of  a  third  person,  the  latter  may  sue  for  a 
breach  of  the  contract.  As  may  be  observed,  this  reason  is  founded 
on  the  early  English  cases.^^  The  addressee  is  the  beneficiary  of 
such  contract  and  is  entitled  to  sue  in  his  own  right  for  damages, 
when  by  the  negligence  of  the  company  he  is  deprived  of  the  benefit 
he  would  otherwise  have  derived. ^^     It  seems  that  it  is  not  necessary 


'"Young  V.   West.    U.   Tel.    Co.,    107 
N.  C.  370,   11   S.  E.   1044,  9  L.  R.  A 
669n,  22  Am.  St.     Rep.     883;     Wads 
worth   V.   West.  U.  Tel.   Co.,  86  Tenn 
695,      8    S.      W.      574,      6      Am.      St 
Rep.     864;   Elwood  v.    West.    U.    Tel 
Co.,  45  N.  Y.    549,    6    Am.    St.    Rep 
140;    Ellis  V.   Tel.  Co.,    13   Allen  227; 
New  York,  etc.,   Tel.   Co.   v.   Dryburg, 
35  Pa.  St.  298,  78  Am.  Dec.  338;  Mar- 
kel  V.  West.  U.  Tel.  Co.,  19  Mo.  App. 
80.     In  the  first  case  cited,  the  court 
by  Clark,  J.,     said:      "The     following 
may  be  summed  up  as  the  reasons  as- 
signed therefor:     1.     That  a  telegraph 
company   is   a  public   agency,    and   re- 
sponsible, as  such,  to  anyone     injured 
by  its  negligence,  or,  at  least,  it  is  the 
common  agent  of  sender  and  receiver, 
and  responsible  to  each  for  any  injury 
sustained  by  them  respectively,  by  its 


negligence:  2.  That  in  a  case  like  this, 
the  receiver  is  the  beneficiary  of  the 
contract,  and  the  injury,  if  any, 
caused  by  the  company's  negligence 
must  be  to  him;  3.  The  message  is  the 
property  of  the  party  addressed,  in  an 
analogy  to  a  consignee  of  goods;  That 
upon  the  face  of  the  message,  such  as 
this,  the  sender  is  the  agent  of  the  re- 
ceiver, and  the  latter,  as  the  principal, 
can  maintain  an  action  for  breach  of 
the  contract,  or  for  a  tort,  if  the  in- 
jury is  done  him  by  negligence  in  per- 
formance of  the  duty  contracted  for." 
The  following  was  the  message  in  this 
case:  "To  J.  T.  Young,  Newberm,  N. 
C.  Come  in  haste;  your  wife  is  at  the 
point  of  death.     J.  W.  Rice." 

^''See  §  471. 

=3  Aiken  v.  West.  U.  Tel.  Co.,  5  S. 
Car.  371  :    West.  U.  Tel.  Co.  v.   Hope, 


<§>    477]  ACTIONS   FOR    DAMAGES.  455 

that  the  addressee  should  have  known  of  the  contract  at  the  time  it 
was  made.  Thus,  it  has  been  held  that  the  husband  of  the  addressee 
may  sue  for  a  breach  of  a  contract  made  with  the  company  by  a  party 
Avho  has  not  been  previously  appointed  her  agent  for  that  particular 
purpose ;  ^*  although,  some  courts  have  held  that  the  company  must 
have  had  knowledge  that  the  sender  was  the  agent  of  the  addresaee.^'^ 
Some  courts  hold  that  the  company  must  have  some  notice  of  the  im- 
portance of  the  message  and  the  benefit  which  the  addressee  is  likely 
to  derive  therefrom. ^^  It  is  sufficient,  however,  if  the  benefit  to  be 
derived  appear  on  the  face  of  the  telegram .^'^ 

§  477.     Same  continued — sender  agent  of  addressee. 

This  rule,  we  think,  is  particularly  applicable  when  the  sender  acts 
as  agent  for  the  addressee  in  making  the  contract.^®  As  was  said,  by 
Reyer,  C.  J.,  in  deciding  this  point:  "The  rule  that  a  principle  is 
entitled  to  maintain  an  action  upon  a  contract  made  by  his  agent 
with  a  third  person,  although  the  agency  is  not  disclosed  at  the  time 
of  making  the  contract,  has  many  illustrations  in  the  reported  cases, 

11  111.  App.  291;  West.  U.  Tel.  Co.  v.  was  made  for  the  benefit  of  the  father, 

Jones,  81  Tex.     271.     "A     person     for  and   that   he   was   entitled   to   sue    for 

whose  benefit  a  promise  to  another  up-  damages  for  the  failure  to  deliver, 

on  a   sufficient   consideration   is  made,  ^  West,     l*  Tel.  Co.  v.  Adams,     75 

may   maintain   an   action   on   the   con-  Tex.   531,    12    S.    W.    857.    16   Am.    St. 

tract     in     his     own  name  against  the  Rep.  920. 

promisor:"      Burton     v.     Larkin,     30  "West.  U.  Tel.     Co.     v.  Wilson,  93 

Kan.  246,  59  Am.  Rep.  541;  Hendrick  Ala.   32,   9    So.   414,   30   Am.   St.   Rep. 

V.   Lindsey,   93    U.   S.    143.     This   doe-  23. 

trine   is   denied  by   the   case  of   West.  ^West.   U.  Tel.   Co.  v.   Boessche,  72 

U.  Tel.  Co.  V.  Dubois,  128  111.  248,  21  Tex.  654,   13  Am.  St.  Rep.  843;   West. 

X.    E.    4,    15    Am.    St.    Rep.    109,    and  U.  Tel.   Co.   v,   Cofiin,     88     Tex.     94: 

also  by  Gray  on  Tel.,  §  67.  Butner  v.   West.  U.   Tel.  Co.,  2  Okla. 

In  West  V.   West.  U.    Tel.    Co.,    39  234,  37   Pac.   1087. 

Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep.  ^^  Martin     v.  West.  U.  Tel.     Co..     1 

530,  a  son  for  the  benefit  of  his  father,  Tex.  Civ.  App.  143,  20  S.  W.  860. 

left  with  the  company  a  message  ad-  "Milliken  v.  West.  U.  Tel.  Co.,   110 

dressed  to  his  father  with  instructions  X.  Y.  403,  1  L.  R.  A.  281;  De  Rutt  v. 

to    forward     it     immediately,     at    the  Xew  York,  etc.,  Tel.  Co.,   1  Daly    (N. 

same     time     paying     the     fee.     Subse-  Y.)    547,  30  How.  Pr.  403.     See.  also, 

quently  the  father  returned  to  the  son  Kennon  v.   West.   U.   Tel.  Co.,  92   Ala. 

the    amount    paid,    and     fully     ratified  ^^9,   9   So.   200. 
liis  act.     It  was  held  that  the  contract 


456  TELEGRAPH   AND   TELEPHONE  COMPANIES.  [§    477 

and  is  elementary  law."  ^^  This  principle  has  been  frequently  ap- 
plied in  actions  against  telegi-aph  companies,  and  is  now  the  settled 
law  of  this  country  with  respect  to  such  corporations.'^'^  While  the 
addressee  may  sue  the  company,  there  is  no  reason  why  the  agent  may 
not  maintain  the  action  in  behalf  of  the  addressee.^  ^ 

§  478.     Action  for  breach  of  public  duty. 

There  are  other  authorities  which  base  the  addressee's  right  of  ac- 
tion upon  the  breach  of  the  company's  public  duty.-*-  While  we 
think  this  is  the  correct  view  to  take  of  the  subject,  yet  we  do  not 
mean  to  say  that  they  may  not  sue  for  the  breach  of  the  contract. 
These  companies  have  undertaken  to  perform  public  functions,  and, 
among  these,  it  is  presumed  that  they  have  assumed  the  duty  to  trans- 
mit correctly  and  accurately  and  deliver  promptly  all  messages  en- 
trusted to  them ;  and  on  a  failure  to  discharge  these  duties  with  due 
care  and  diligence,  they  will  become  liable  to  anyone  who  suffers 
damages  thereby.  People  seldom  resort  to  them  for  an  employment 
of  their  sei-vices  unless  their  business  is  of  such  importance  that  it 
must  be  attended  to  in  the  shortest  possible  time  and  in  the  most  ac- 
curate and  correct  manner.^ ^     They  have  held  themselves  out  to  the 

«»Milliken  v.  West.   U.  Tel.   Co.,   110  0    L.   R.   A.    669n;    West.    U.   Tel.    Co. 

N.  Y.  403,  1  L.  R.  A.  281.  v.   Adams,  75  Tex.  531,  12  S.  W.   857. 

"De    Rutt   V.    New    York,    etc.,    Tel.  G  L.  R.  A.  344,   16  Am.  St.  Rep.  920; 

Co.,  1  Daly   (N.  Y.)    547,  30  How.  Pr.  West.  U.  Tel.  Co.  v.  Reynolds,  75  Va. 

403.  173,   46  Am.   Rep.   715;    West.   U.  Tel. 

« United    States    Tel.    Co.    v.    Gilder-  Co.  v.  Allen,  66  Miss.  549,  6  So.  461; 

sleeve,  29  Md.  332,   96  Am.  Dec.   519;  Cowan  v.  West.  U.  Tel.  Co.,  122  Iowa 

American  U.  Tel.  Co.  v.  Dougherty,  89  379,  98  N.  W.  281,   101  Am.  St.  Rep. 

Ala.  191,  7  So.  660;  Dougherty  v.  Am-  268,   64  L.  R.  A.  545. 
erican     U.   Tel.   Co.,     75   Ala.    168,   57  "Mr.    Bigelow    suggests    as    a    satis- 

Am.  Rep.  435.  factory  ground  for  the  American  rule, 

'-West.    y.   Tel.    Co.   v.   Dubois,    128  the    fact    that   telegraphic   communica- 

111.  248,  21   N.  E.  4,   15  Am.  St.  Rep.  tion      is    usually   resorted   to   only     in 

109;    3   Suth.  on  Dam.  314;   West.  U.  matters     of     importance,  from     which 

Tel.   Co.  V.  Longwill,   10  Am.  St.  Rep.  the   company    ought   to    infer   the   nec- 

699;  Milliken  v.  West.  U.  Tel.  Co.,  110  essity     of  correct  and  prompt     trans- 

N.   Y.   403,   1   L.  R.  A.  281;   West.   U.  mission,  and     that     "a  mistake  in  its 

Tel.  Co.  V.  Fenton,  52  Ind.  1 ;  Abraham  transmission   will  be   likely  to  produce 

V.  West.  U.  Tel.  Co.,  11  Sawy.   (U.  S.)  damage  to  the  receiver  by  causing  him 

28.     See,  also,  Young  v.  West.  U.  Tel.  to  do  what  he  would  otherwise  not  do. 

Co.,   107    N.    C.    370,    11    S.    E.    1044,  Knowing,  then,     the     ])robable     conse- 


§    479]  ACTIOXS    FOR    DAMAGES.  457 

public  as  ready  and  willing  to  accomplish  such  business,  and  when 
they  arc  coni])('nsated  for  their  undertaking,  but  fail  in  the  attempt, 
they,  and  n.i!  their  cniployer,  shduld  suffer  for  the  negligence  of  the 
former.  In  other  words,  when  they  have  failed  to  discharge  their 
public  duties  in  transmitting  messages,  whereby  the  addressee  lias 
been  caused  to  suffer,  the  latter  should  have  tlie  riglit  to  main- 
tain an  action  against  the  company  for  the  breach  of  its  public  duty. 
The  damages,  however,  which  result  from  such  breach  should  te  the 
proximate  consequence  of  the  company's  negligence. 

§  479.     Same  continued — action  in  contract  or  tort. 

It  is  often  a  question  with  the  addressee  as  to  whether  he  sliould 
liring  an  action  in  contract  or  in  tort,  and  it  is  sometimes  a  doubtful 
question  with  the  courts  as  to  what  kind  of  an  action  has  been 
brought.  Because  the  addressee  has  an  action  in  contract  is  no  rea- 
son why  he  may  not  sue  in  tort.  As  was  said:  ''In  many  cases  an 
action  as  for  tort,  or  an  action  as  for  breach  of  contract,  may  be 
brought  l)y  the  same  party  on  the  same  state  of  facts ;"  ^'^  and,  as  fur- 
ther stated  by  another  text-writer:  "The  fact  that  a  contract  existed, 
and  was  l)roken  at  the  same  time,  and  by  the  same  act  or  omission,  by 
which  the  plaintiff's  cause  of  action  arose,  is  only  one  of  the  incidents 
of  the  situation.  The  defendant  owed,  in  respect  of  the  same  thing, 
two  distinct  duties,  one  of  special  character  to  the  party  with  whom 
he  contracted,  and  one  of  a  general  character  to  others.  .  .  .  The 
duty,  therefore,  does  not  grow  out  of  the  contract,  but  exists  before 
and  indopciidciit  of  it.""*^*     These  companies  are  engaged  in  a  public 

queiice    of     transmitting  an  erroneous  ^u    Am.  St.  Rep.  294,  62  N.  W.  1 ;  Al- 

message,   they   owe   a   duty  to  the   re-  cxander     v.     West.    U.    Tel.     Co.,     66 

ceiver  of   refraining     from   such   acts;  ■Nliss.  161,  3  L.  R.  A.  71,   14  Am.  St. 

and     if    (by  negligence)    they     violate  Rep.  556,     5     So.     397;      Shingleur  v. 

this    duty,    they   must,    on    plain    legal  West.  U.  Tel.  Co.,  72  Miss.  1030,  30  L. 

principles,  ho  liable     for     the   damage  R.  A.  444,  48  Am.  St.  Rep.  604,  18  So. 

])roducod:"       Bigelow    on    Torts,    602.  425;    Tobin   v.   West.   U.   Tel.   Co.,   146 

See,   also,    Coit   v.   West.   U.    Tel.    Co.,  Pa.   St.   375,  28  Am.   St.  Rep.   802,  23 

130  Cal.  657,  53  L.  R.  A.  678,  80  Am.  At).  324;   Popper  v.  West.  U.  Tel.  Co.. 

St.  Rep.  153,  63  Pac.  83;  West.  U.  Tel.  87  Tonn.  554,  4  L.  R.  A.  660,  10  Am.  St. 

Co.  V.  Lycan,  60  111.  App.  124;   Webbe  Rep.    699,    11    S.    W.    783:    Wadsworth 

V.  West.  U.  Tel.   Co.,   169  111.   610,  61  v.   West.  U.  Tel.   Co..  86  Tenn.   695,  6 

Am.  St.  Rep.  207,  48  N.  E.  670;  West.  Am.   St.  Rep.   864,   8   S.   W.   574. 
U.  Tel.  Co.  V.  Fenton,  52  Ind.  1 ;  ]\Ient-  '*  Cooley  on  Torts,  103,  104. 

zia  V.  West.  U.  Tel.  Co.,  93  Iowa  572,  *=*  Bigelow    on    Torts,    586-617. 


458  TELEGRAPn  AND  TELEPHONE   COMPANIES.  \_^    479 

employment  and  are,  within  certain  limits,  to  be  considered  as  com- 
mon carriers.  As  such,  they  are  charged  mth  a  common-law  duty, 
and  ^'actions  may  be  brought  in  tort,  although  the  breach  of  duty  is 
the  doing  or  not  doing  of  something  contrary  to  an  agreement  made 
in  the  course  of  such  employment."  "*"  Almost  all  cases  on  this  subject 
hold  that  the  addressee,  who  is  injured  through  the  negligence  or 
carelessness  of  the  company,  may  proceed  either  upon  contract,  alleg- 
ing the  negligent  act  of  the  defendant  as  a  breach  of  the  contract,  or 
he  may  proceed  in  tort,  making  the  negligence  of  the  company  the 
gTound  of  his  right  of  recover}^^'^ 

§  480.     Same  continued — damages  under  either. 

The  reason  why  this  question  should  be  considered  and  known  is, 
that  the  amount  of  damages  to  be  recovered,  and  the  ground  upon 
which  it  is  allowed  under  each,  is  quite  different.  The  general  rule 
as  to  the  amount  of  damages  to  be  recovered  for  a  breach  of  contract 
is,  that  none  can  be  recovered  save  that  which  may  reasonably  be  sup- 
posed to  have  been  contemplated  by  the  parties  at  the  time  the  con- 
tract was  made,  as  the  probable  result  of  the  breach  of  the  contract.^^ 
Recovery  in  tort  is  not  thus  limited.  The  rule  applicable  to  such 
cases  is,  that  a  "party  who  commits  a  trespass,  or  other  wrongful  act, 
is  liable  for  all  the  direct  injury  resulting  from  such  act,  although 
such  resulting  injury  could  not  have  been  contemplated  as  a  probable 
result  of  the  act  done."  ^^  This  subject  is  most  often  brought  up 
where  the  addressee  is  suing  to  recover  damages  for  mental  suffering. 
If  the  action  is  in  contract,  it  is  pretty  generally  held  that  the  ad- 
dressee cannot  recover  damages  for  mental  suffering,  since  it  is  pre- 
sumed that  this  was  not  in  the  contemplation  of  the  parties  as  a  prob- 
able result  of  the  breach  of  the  contract;  yet,  if  the  action  were  in 

*«  Southern   Ex.   Co.    v.    McVeigh,   20  Iowa  379,  98  N.  W.  281,  101  Am.  St. 

riratt.  264;    McPeek  v.   West.   U.  Tel.  Rep.  274,  64  L.  R.  A.  545. 
Co.,  107  Iowa  362,  70  Am.  St.  Rep.  205,  *"  Brown  v.  Chicago,  etc.,  R.  Co.,  54 

78  N.  W.  63,  43  L.  R.  A.  214;  Brown  Wis.   342,   41   Am.   Rep.   41,   11   N.   W. 

V    Chicago,  etc.,  R.  Co.,  54  Wis.   .'U2,  356;    Keenan   v.   Cananaugh,    .44     Vt. 

41    Am.   Rep.   41,   11    N.   W.   356.  268;     Metallic,  etc.,  Co.  v.     Fitchburg 

"Id.  B.   Co.,    109   Mass.    277,    12   Am.   Rep. 

^«  Cowan   V.    West.    U.   Tel.    Co.,    122  689;    Hill  v.   Winson,    118  Mass.   251; 

1   Sedgwick  on  Dam.,   130. 


<§    482]  ACTIONS    FOR    DAMAGES.  459 

tort,  recovery  coukl  be  had.^"  So,  it  is  of  vital  importance  to  kuo\v 
what  kind  of  action  should  be  brought,  and,  also,  the  nature  of  the 
action  which  has  been  brought. 

§  481.     Agent  for  addressee. 

It  has  been  held,  by  some  courts,  that  the  company  stands  in  the 
relation  of  an  agent  to  the  addressee  and  is,  therefore,  liable  in  dam- 
ages to  its  principal  for  the  consequence  of  its  negligence. '^^  It  was 
held,  in  one  case,  viewing  the  matter  in  this  light,  that  it  was  reason- 
able for  all  purposes  of  liability,  that  the  company  should  be  regarded 
as  much  the  agent  of  him  who  receives,  as  of  him  who  sends  the  mes- 
sage, and  it  was  considered  that  the  company  ought  to  be  regarded 
as  the  common  agent  of  the  parties  at  either  end  of  the  wire.^^  We 
think  this  is  clearly  an  incorrect  view  lo  take  of  the  subject.  But  as 
will  be  seen  hereafter,  the  company  is  generally  considered  to  be  the 
agent  of  the  sender,  when  it  is  not  suggested  by  the  addressee  to  be 
used  as  a  medium  of  communication;  but  it  may  be  sued  by  either 
for  the  negligent  performance  of  its  duty. 

§  482.     Right  under  statute. 

Other  authorities  claim  that  the  right  of  the  addressee  to  sue  tlie 
company  for  negligently  transmitting  or  delaying  the  delivery  of  a 
message,  arises  from  statutes  to  that  effect.  ^^  In  some  states  there 
were  statutes  early  adopted  which  gave  the  third  party  the  right  to 
maintain  an  action  for  a  breach  of  a  contract  made  for  his  benefit, 
although  he  may  have  been  a  stranger,  both  to  the  promise  and  the 
consideration.^*    In  two  states  in  particular,  there  have  been  statutes 

""See  chapter  on  Damages  for  men-  Rice  v.  Sovery,  22  Iowa  470;   Miliani 

tal  suffering.  v.  Toguini,   19  Nev.   133;   McArther  v. 

"New  York,   etc.,   Printing   Tel.   Co.  Dryden,   6  N.  Dak.   43S. 
V.  Dryburg,  35  Pa.  St.  298,  78  Pa.  St.  Statutes  allowing  the   real  party  in 

338.  interest     to     sue  have  been  passed  in 

"Id.  Alabama,  California,     Indiana,     Iowa, 

*'  Wadsworth   v.    \\  est.    U.   Tel.    Co.,  Kansas,     Kentucky,     Minnesota,    Mis- 

80  Tenn.   G95,  6  Am.   St.  Rep.   864,  8  souri,   Nebraska,  Nevada.     New  York, 

S.  W.  574;   West.  U.  Tel.  Co.  v.  Fen-  North    Carolina,   Ohio,    Oregon,   Texas, 

ton,   52   Ind.   1.  Utah  and  Wisconsin.     Statutes  specif- 

"  Ellis   V.   Harrison,     104     ^lo.    270;  ically  giving  to  a   tliird   party  a  right 


•±60  TELEGRAril  A^D  TELEPHONE   COMPANIES.  \_^    482 

adopted  which  are  more  specifically  applicable  to  the  negligence  of 
telegTaph  companies."^  It  is  often  provided  in  these  latter  statutes 
that  the  right  of  the  addressee  is  not  affected  by  reason  of  the  fact 
that  the  employees  of  the  company  may  be  proceeded  against  crimi- 
nally for  their  negligence. ^*^  While  these  statutes  have  had  a  ten- 
dency to  streng-then  the  general  rule  whereby  a  third  person,  in  whose 
favor  a  contract  has  been  made,  may  maintain  an  action  for  a  breach 
therefor,  yet  we  think  that  the}^  are  merely  declaratory  of  the  rights 
derived  under  the  conmion  law,  and  that  a  third  person  could  as  eas- 
ily recover  damages  for  the  breach  of  the  contract  made  in  his  be- 
half as  if  the  statutes  were  not  in  existence. 

§  483.     Right  of  action — altered  message. 

And  still,  it  has  been  held  in  other  jurisdictions  that,  where  a  tele- 
gTaph company  has  delivered  an  altered  message  or  one  materially 
different  from  that  contracted  to  be  sent,  it  would  be  a  misrepresenta- 
tion,or  a  false  message,  and  the  company  should  be  held  liable  for  the 
consequences.^^  The  ground  upon  which  the  right  of  action  arises  is 
the  same  as  that  for  injuries  resulting  from  other  misrepresentations. 
Thus,  it  has  been  held  that  a  physician,  who  negligently  adminis- 
tered a  wrong  medicine,  is  responsible  to  his  patient  for  the  injury 
resulting  therefrom,  if  he  takes  it  in  the  belief  that  he  was  taking  the 
right  medicine.  ^^  And  it  has  been  suggested  by  analogy  that  a  tele- 
graph company  must  answer  to  an  addressee  for  delivering  to  him  a 
message  which,  through  its  negligence,  has  become  false. ^^  But  in 
order  for  the  addressee  to  recover,  he  must  show  that  he  himself  has 
suffered  an  injury  by  the  negligence  of  the  company.  Therefore, 
where  a  message  from  a  dealer  to  his  broker   is    erroneously    trans- 

of  action  upon  a  contract  made  for  his  "May  v.  West.     U.     Tel.     Co.,     112 

benefit  have  been  passed  in  California,  Mass.   90. 

Code,     §  1659 ;     and     Dakota,     Conipt.  »*  Norton    v.    Small,    106   Mass.    143, 

Laws,   §  3499.  8  Am.  Rep.  298 ;   Thomas  v.  Winches- 

^=^Tenn.   Code.,    §§    1541,    1542,   Indi-  ter,   6   N.   Y.   397,   57    Am.   Dec.   455; 

ana  Statute.  Ayers  v.  Eussel,  3  N.  Y.  Supp.  338. 

'» WadsAvorth    v.    West.    U.    Tel.    Co.,  =»  Allen's  Tel.     Cas.     455;      Gray  on 

Sfl   Tenn.   G95,   6  Am.   St.   Eep.   864,   8  Tel.,   §   73. 
S.   W.   574;   West.  U.  Tel.  Co.  v.   Fen- 
ton,  52  Ind.   1. 


<^    485]  ACTIOXS   FOR  DAMAGES.  461 

initted,  by  reason  of  which  I  lie  broker  luakos  losing  coniraeLs  for  his 
])ri]icipal,  tlie  broker  cannot  maintain  an  action  for  damages,  be- 
cause, as  he  is  not  responsible  on  the  contracts,  he  caimot  claim  to 
have  suffered  any  damages.'"^  The  courts  and  text-writers,  as  may  be 
observed,  have  considered  various  grounds  upon  which  the  ad- 
dressee's rights  of  action  have  l)een  based,  but  we  are  inclined  to 
tliink,  as  said  before,  tliat  liis  right  of  action,  when  on  contract,  is 
founded  on  the  ground  thai  a  third  party,  in  whose  favor  a  contract 
is  made,  may  sue  for  the  breach  thereof;  and  when  the  action  is  in 
tort,  for  the  breach  of  the  company's  common-law  duty. 

§  484.     Sender  paying  charges — effect  upon  the  addressee's  right. 

The  fact  that  the  sender  ])aid  the  company  the  charges  for  trans- 
mitting the  message,  will  not  affect  the  addressee's  right  of  action.*^^ 
If  the  sender  is  acting  in  the  relation  of  agent  to  the  addressee,  in  the 
particular  instance;  or,  if  the  latter  is  the  beneficiary  of  the  contract 
of  sending,  the  payment  by  the  sender  will  be  a  sufficient  payment  for 
the  addressee.  If  he  should  sue  for  the  breach  of  its  public  duty,  the 
payment  by  the  sender  in  the  contract  of  sending,  and  out  of  which 
the  action  of  tort  arose,  would  be  sufficient  for  him  to  maintain  an  ac- 
tion thereon.  It  matters  not  from  whom  it  derives  the  compensation 
for  its  services,  because,  having  received  the  charges,  it  is  presumed 
that  the  company  has  assumed  the  duty  to  correctly  transmit  and 
promptyly  deliver  the  message.  In  one  case  it  was  held  that  the  receiv- 
er could  maintain  his  suit  although  the  charges  had  been  paid  by  the 
sender,  to  whom  they  were  afterwards  returned  by  the  company.^^ 
The  same  rule  will  apply  in  actions  brought  by  the  sender  when  the 
message  fees  have  been  paid  by  the  addressee. 

§  485.     Third  party — right  of  action. 

It  is  not  every  one  who  may  maintain  suit  against  a  telegraph  com- 
])any  when  interested  in  a  message  being  correctly  transmitted  and 

""Rose   V.    United   States   Tel.   Co.,   G  Co.  v.  Allon.  VS  :Miss.  .-)49,  0   So.  4t;i; 

Robt.    (N.  Y.)    305;    3  Abb.   Pr.   N.   S.  West.   U.   Tel.   Co.   v.   Feegles,   75  Te.\. 

(^^.    Y.)     408.    34    How.    Pr.     (X.    Y.)  537.   12   S.  W.  800;   West.  U.  Tel.   Co. 

308.  V.  Beringer,  84  Tex.  38.  19  S.  W.  330. 

"Wolfskehl      V.    West.    U.    Tel.    Co.,  "MVest.   I'.   Tel.   Co.   v.   Berinper,   84 

4(1    Ihin    (X.    Y.)     .-)42:    West.    U.   Tel.  Tex.    38.    19    S.    W.    XKk 


402  TELEGKAPII   AA'D  TELErHOAK    CO.MPAXIES.  \_^    485 

promptly  delivered,  and  who  would  suffer  a  loss  by  a  failure  of  the 
company  to  properly  discharge  this  duty.  He  must  show  that  the 
company  owed  a  duty  to  him  in  the  particular  instance.  Therefore, 
a  stranger  cannot  maintain  an  action  against  a  telegraph  company  for 
its  negligence  in  transmitting  or  delay  in  the  delivery  of  a  message, 
when  the  company  is  ignorant  of  his  connection  or  interest  in  the 
message,  or  when  he  is  remotely  connected  in  the  transaction.  Thus, 
where  the  plaintiff  delivers  a  message  to  a  third  person  with  the  in- 
struction to  deliver  it  to  the  company  for  transmission,  but  instead  of 
the  third  party  obeying  the  instruction,  he  writes  another  message 
and  prepares  and  delivers  it  to  the  company  as  his  own,  and  of  which 
act  the  company  is  ignorant,  the  latter  will  not  be  liable  to  the  plain- 
tiff for  its  negligence.*"^  If  the  plaintiff  can  show  that  either  the  sen- 
der or  the  addressee,  or  both,  were  acting  merely  as  his  agents,  the 
rule  would  be  different.  So,  also,  where  the  message  is  sent  on  behalf 
of  a  wife,  the  husband  is  the  proper  person  to  sue,  although  he  may 
not  have  been  a  party  to  the  contract  of  sending.^^  And  the  parent  or 
next  friend  may  sue  a  company  for  its  negligence  in  transmitting  or 
delivering  a  message  in  which  the  child  is  interested.  In  such  cases 
the  contributory  negligence  of  the  parent  will  be  no  defense  to  the 
company  as  against  the  child,  while  it  may  be  as  against  the  parent.*^^ 

•^  Elliott  V.   West.   U.   Tel.     Co.,     75  company  for  failure  to  deliver  a  mes- 

Tex.     18,     12  S.  W.  954;  Deslottes  v.  sage  sent  to  a  physician.     The  son,  a 

Baltimore,  etc.,  Tel.   Co.,  40  La.  Ann.  boy  of  fifteen  years,     had     broken  his 

183.  arm  and  on  the  same  day  his  mother, 

**  The  fact  that  the  company  had  no  in  his  father's  absence,  telegraphed  for 
notice  that  she  was  plaintiff's  wife,  or  a  physician.  Through  the  conceded 
that  the  contract  was  made  for  her,  is  negligence  of  the  company  the  message 
immaterial:  ^Yest.  U.  Tel.  Co.  v.  was  not  delivered  for  nine  days,  but 
Adams,  75  Tex.  531,  16  Am.  St.  Rep.  it  appeared  that  the  parents  made  no 
920;  West.  U.  Tel.  Co.  v.  Feegles,  75  further  efforts  to.  secure  a  physician 
Tex.  537 ;  West.  U.  Tel.  Co.  v.  Cooper,  until  it  was  too  late  to  save  the  boy's 
71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  arm.  It  was  held  that  the  father's 
Rep.  772,  1  L.  R.  A.  728;  Young  v.  contributory  negligence  in  not  sending 
West.  U.  Tel.  Co.,  107  N.  C.  370,  22  for  another  physician  would  bar  re- 
Am.  St.  Rep.  883,  9  L.  R.  A.  669n,  11  covery  on  his  own  account,  but  that 
S.  E.   1044.  a   judgment   in   favor   of   the   son   was 

"West.    U.   Tel.   Co.   v.   Hoffman,   80  pioper,  as  the  negligence  of  the  father 

Tex.   420,    15   S.   W.    1048,   26   Am.   St.  could  not  be  imputed  to  him.     See,  al- 

Rep.  758.     This  case  was  an  action  by  so,    Williams   v.   Tex.,   etc.,   R.   Co.,   60 

a  father  and  son  against  the  telegraph  Tex.    205;      Galveston,   etc.,   R.    Co.    v. 


(^    487]  ACTIONS  I'OK  DAMAGES.  463 

§  486.     Under  special  statutes — penalty. 

There  are  special  statutes  adopted  in  some  of  the  states  which 
impose  a  penalty  on  telegraph  companies  for  every  failure  to  prop- 
erly discharge  its  duty  as  to  transmitting  and  delivering  messages, 
and  providing  that  the  penalty  may  be  recovered  by  the  '"party  ag- 
grieved." It  has  been  held  in  Mississippi,*^**  Tennessee  ^'^  and  Mis- 
souri,*'^ that  either  the  sender  or  receiver  could  recover  the  penalty 
under  these  statutes.  There  is  a  statute  somewhat  similar  to  these  in 
Indiana,  but  it  is  held  there  that  only  the  sender  has  a  right  of  ac- 
tion.**'-*  And,  in  the  latter  state  it  is  held  that  one  who  directs  his 
clerk  to  forward  to  him,  in  his  absence,  an  expected  message  from  a 
third  person,  is  not  a  ''sender"  within  the  meaning  of  the  statute ;  '^'^ 
nor  is  one  a  sender  who  merely  shows  that  he  delivered  to  the  company 
a  message  for  transmission,  signed  by  another  but  paid  for  by  him- 
self."^ ^  There  is  another  statute  in  this  state  authorizing  the  recov- 
ery of  special  damages,  under  which  the  addressee  may  sue.'-  There 
is  a  statute  in  IvTew  York  which  prescribes  the  duties  of  telegraph 
companies,  and  under  this,  a  company  may  maintain  an  action 
against  a  connecting  line  which  refuses  to  accept  a  message  from  the 
initial  line  for  further  transmission ;  '  ^  although,  in  such  cases,  the 
original  sender  of  the  message  might  properly  have  maintained  the 
action.*^* 

§  487.     Addressee's  right  not  affected — by  failure    to    have  mes- 
sage repeated. 

In  some  jurisdictions  it  is  held  that  the  stipulations  in  the  mes- 
sage blank?  with  respect  to  a  necessity  of  a  message  being  repeated  in 

Moore,  59   Tpx.   64,  4(5  Am.   Rep.  265;  Tel.  Co.  v.  Hopkins,  49  Ind.  223;  Had- 

Plimley  v.  Birge,  124  Mass.  57,  26  Am.  ley  v.  West.  U.  Tel.  Co..  115  Ind.   191. 
Rep.  645.  ""West.   U.   Tel.   Co.   v.   Kenney,    106 

"West.  U.  Tel.   Co.     v.     Allen,     66  hid.   468. 
Miss.   549,  6   So.   461.  -'West.    U.    Tel.    Co.    v.    Brown,    lOS 

»■  Wadsworth   v.    West.    U.    Tel.   Co.,  Ind.  538. 
86   Tenn.   695.   6  Am.   St.   Rep.   864,   8  'MVest.     U.   Tel.    Co.   v.      ^NIcKibben. 

S.  W.  574.  114   Ind.   511;    West.     U.     Tel.   Co.   v. 

°*Markel    v.    West.    U.    Tel.    Co..    19  Fcnton,  52  Ind.   1. 
Mo.  App.  80.  '^United  States  Tel.  Co.  v.  West.  V. 

■^West.  U.  Tel.  Co.  v.  Pendleton,  95  Tel.   Co.,  56  Barb.  46. 
Ind.    12,   48    Am.   Rep.   692;    West.   U.  "♦Leonard  v.    New    York.    etc..    Tel. 

lei.  Co.  V.  .M<ck,  49  Ind.  53;  West.  U.  Co.,  41   X.   Y.  544,   1   Am.   Rep.  446. 


4:64:  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§,    487 

order  to  bind  the  company  are  binding;  and,  when  this  is  the  case, 
the  addressee's  right  of  action,  when  in  tort,  is  not  affected  by  these 
stipnlations,"^  but  if  the  action  is  in  contract,  wo  think  the  rule  would 
be  different.  When  he  sues  for  the  breach  of  the  contract,  made  by 
the  sender  as  his  agent  or  in  his  behalf,  he  assumes  all  the  conditions 
of  the  contract,  and  as  they  would  be  binding  on  the  sender,  they 
would  also  be  binding  on  the  addressee. 

§  488.     Actions  between  sender  and  addressee. 

It  has  been  held  that,  as  between  the  sender  of  a  telegraph  mes- 
sage and  the  innocent  sendee,  all  losses  caused  by  the  errors  or  mis- 
takes made  in  the  transmission  must  be  borne  by  the  sender,  but  the 
latter  may  recover  his  loss  from  the  company.'^  Thus,  where  a  com- 
pany erroneously  transmits  a  message  offering  to  sell  merchandise  at 
a  certain  price,  so  as  to  make  the  price  less,  the  sender  would  be 
bound  by  the  message  as  sent,  but  he  could  recover  the  difference 
from  the  company.'^'''  The  reason  of  this  rule  is,  that  the  company 
has  no  authority  or  agency  either  from  the  sender  or  addressee  to 
make,  modify,  or  alter  any  agreement  or  proposition  contained  in  the 
message  to  buy  or  sell,  or  to  bind  a  person  sending  or  receiving  it."® 
Hence,  the  mere  fact  of  employing  the  company  to  send  a  message 

'"  New    York,   etc.,   Printing   Tel.    Co.  raises  the  price,  and  the  principal  ac- 

V.   Dryburg,   3,5   Pa.   St.   298 ;    Tobin  v.  cepts  the  offer  as  received  and  executes 

West.  U.  Tel.  Co.,  146  Pa.   St.  375,  28  a    deed   at   that    price   first   named   by 

Am,  St.  Rep.  802,  20  Atl.  324.  him,  the  company  is  liable  to  the  ven- 

™Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  dor  for     the     difference     between  the 

493,   1   Am.  St.  Rep.   3.53,   10  Atl.  495.  prices:      Reed   v.   West.    U.    Tel.    Co., 

"West.   U.   Tel.   Co.   v.    Flint   River,  135   Mo.   661,   37   S.  W.   904,  34  L.   R. 

etc.,   Co.,    114   Ga.   576,   40    S.   E.    815,  A.  492,  58  Am.  St.  Rep.  609,  37  S.  W. 

88  Am.   St.  Rep.  39.  904.     See,  also,  Hasbroiick  v.  West.  U. 

The  company  in  accepting  a  message  Tel.    Co.,    107    Iowa    160,    70    Am.     St. 

is  under  obligation  to  transmit  it  cor-  181,     77   N.   W.   1034:     Rettenhouse  v. 

rectly:     West.  U.  Tel.  Co.  v.  Chamblee,  Independent    Line    of    Tel.,    44     N.     Y. 

122  Ala.   428,   82   Am.   St.  Rep.  89,  25  2263,   4  Am.   Rep.   673;    West.   U.   Tel. 

So.  232.     If  a     land     agent     leaves     a  Co.  v.  Reals,  56  Neb.  415,  71  Am.  St. 

message   directed   to   liis   principal   and  Rep.   682,   76  N.   W.   903. 
naming   the   price   at   which   his   prop-  "^  Pegram   v.   West.   U.   Tol.   Co.,   100 

erty     can     be     sold,  and  the  company  N.  C.  28,  6  Am.  St.  Rep.  557. 
through     error     in     the     transmission 


<§    490]  ACTIONS   FOIi  DAMAGES.  465 

docs  not  make  it  the  agent  of  the  sender  so  as  to  bind  him  upon  a 
telegram  negligently  altered  in  transmission.  The  sender  is  bound 
by  the  contents  of  the  telegram  as  received,  only  so  far  as  it  is  a 
faithful  reproduction  of  what  is  sent.'^''  The  negligence  of  the  com- 
pany in  delivering  a  changed  message  cannot  be  attributed  to  the  ad- 
dressee, who  acts  upon  its  direction,  when  there  is  nothing  in  the 
message  as  received  to  suggest  a  doubt  as  to  its  accuracy, ®° 

§  489.     Contract  made  where  last  act  of  assent  was  done. 

A  contract  is  complete  where  nothing  further  remains  to  be  done 
to  give  either  party  a  right  to  have  it  carried  into  effect. ^^  There- 
fore, where  the  parties  are  residents  of  different  states,  the  state 
where  the  final  assent  is  given  or  the  last  act  necessary  to  complete  it 
is  done  is  the  place  where  the  contract  is  made,  notwithstanding  all 
preliminary  arrangements  were  made  in  the  other  state.^^  It  has  been 
stated  that  "the  general  rule  of  law  is,  that  a  contract  takes  effect,  as 
such,  at  the  place  where  it  was  intended  to  be  delivered  and  become 
operative,  and  the  liability  of  the  parties  is  determined  by  the  law  of 
that  place.^^  So,  where  a  person  in  one  state  writes  to  a  person  in 
another  a  letter  containing  an  offer  or  proposal,  and  the  latter  writes 
in  reply  a  letter  accepting  the  proposal,  the  contract  is  complete  when 
the  letter  of  assent  is  deposited  in  the  post  office,  properly  ad- 
dressed.®* The  place  of  the  contract  is  the  place  where  the  letter  of 
acceptance  is  mailed,  and  not  the  place  where  the  letter  is  received.®^ 

§  490.     Same  continued — actions  between  sender  and  addressee — 
contract — where  made. 

The  place  of  final  assent  generally  determines  the  place  where  a 
contract  is  made,  when  it  consists  of  letters  or  telegrams  passing  be- 

^»  Pepper  v.   Tel.   Co.,  87   Tenn.   554,  1?   Am.   Dec.   281;    Milliken   v.   Pratt. 

11    S.    W.    783,    10   Am.    St.   Rep.    609.  125  Mass.   375;     Ames    v.    :McKamber. 

■i  L.  R.  A.  660.  124  Mass.  85. 

»»West.  U.  Tel.    Co.    v.    Edsall,    74  ^^Lee  v.  Selleck,     33     N.     Y.     615: 

Tex.    329,    12    S.    W.    41,    15    Am.    St.  Fielden  v.  Blair,  21  Wall.  246. 

Rep.   835.  "Maetier    v.    Frith,    6    Wend.    103; 

^'Maetier   v.    Fritli.     6    Wend.     103;  Adams   v.   Lindsell,     1     Barn.    &    Aid. 

Hamilton  v.  Lycoming  Ins.  Co.,  5  Pa.  681. 

St.  339.  "Vassar     v.      Camp,    14   Barb.   341; 

«MVhiston  V.   Stodder,    8    Mart.    95,  Clark  v.  Dales.  20  Id.  42;  Bell  v.  Pack- 

T.  &  T. 30  ^'''^»  ^^  ^^®-   ^^^- 


4:QQ  TELEGRAPH  AND   TELEPHONE   COMPANIES.  [<§,    490 

tween  parties  living  in  different  places  or  countries.  When  a  tele- 
gram is  sent  accepting  a  proposition,  received  by  mail  or  telegram, 
the  contract  thus  consummated  is  deemed  to  have  been  made  at  the 
time  when  and  the  place  where  the  last  act  of  assent  was  thus  done 
or  made ;  and  the  contract  is,  therefore,  binding,  though  as  a  matter 
of  fact,  the  telegram  is  not  received  by  the  person  to  whom  it  was  ad- 
dressed.^^ The  parties  to  a  contract  made  by  means  of  telegrams  are 
bound  by  the  laws  of  the  state  in  which  the  contract  was  made,  al- 
though the  suit  may  have  been  brought  in  another  state.  They  may, 
however,  agree  by  contract  or  stipulation  to  be  governed  by  the  laws 
of  a  state  other  than  that  in  which  the  contract  was  made.^"^ 

§  491.     Same  continued — action  where  brought. 

The  place  where  suit  should  be  brought  depends  upon  the  question 
as  to  whether  the  action  is  local  or  transitory ;  and  the  difficulty  is  to 
determine  what  are  local  and  what  are  transitory  actions.^^  If  the 
contract  between  the  sender  and  the  addressee  concerns  local  matter, 
the  suit  must  be  brought  in  the  place  where  the  property  is  located  f^ 
but  if  it  is  about  transitory  matter,  it  should  be  maintained  in  the 
place  where  the  defendant  can  be  found.  Where  the  company  has 
been  guilty  of  negligence  in  the  transaction  of  its  business,  actions 
brought  to  recover  damages  arising  therefrom  are  personal  and  tran- 
sitory and  may  be  brought  wherever  the  defendant  can  be  found,  but 
if  the  action  is  brought  to  recover  a  statutory  penalty,  it  must  be  in- 
stituted in  the  state  in  which  the  statute  is  in  force. 

*'■  Dard.    v.    Bounaffee,    6    La.     Ann.  where,  then  it  is  transitory;   but  if  it 

5G3,  54  Am.  Dec.  573;  Bell  v.  Packard,  could     only     have  arisen  in  one  place, 

69  Me.   105,  31  Am.  Rf'p.  251;   Va.ssar  then  it  is  local;  and  for  the  most  part, 

V.  Camp,   11   N.     Y.     441;     Trevor     v.  actions  M'hich     are     local     are     those 

Wood,  36  N.  Y.  307,  93  Am.  Dec.  511;  brought  for  the  recovery  of  real  estate 

Perry  v.  Mt.  Hope  Ins.  Co.,   15  R.   I.  or     for     injuries  thereto,  or  for  ease- 

380,  2  Am.  St.  Rep.   902.  ment:"     Cooley  on  Torts  (2  Ed.),  451. 

"Griesemer  v.  Mut.,  etc.,  Assn.,   10  See,    also.    Mason    v.    Warner,    31    Mo. 

Wash.    202;      Pennsylvania,     etc.,   Ins.  508;   White  v.  Sanborn,  6  K  H.  222; 

Co.   V.   Mechanic's,   etc.,    Co.,     72    Fed.  Morris   v.     Missouri     Pac.    R.    Co.,     78 

413,   73    Fed.    653.  Tex.    17,   9   L.   R.   A.   349,   22   Am.   St. 

**  Perhaps  the  best  distinction   to  be  Rep.    17;     Little    v.     Chicago,   etc.,   R. 

found  between  local  and  transitory  ac-  Co.,  65  Minn.  48,  60  Am.  St.  Rep.  421, 

tions  is,  that  "If  the  cause  of  action  33  L.  R.  A.  423,  67  N.  W.  846. 
is   one  that  might    have    arisen    any-  ^  Id. 


CHAPTER  XX. 

MATTERS  OF  PLEADING,  PRACTICE   AND  EVIDENCE- 
GENERALLY. 

492.  Scope  of  chapter. 

493.  Character  of  action. 

494.  Same  continued— distinction    between  an    altered    message, 

and  one  not  sent  or  delivered. 

495.  Action — by  mandamus. 

496.  Action — injunction — specific  performance. 

497.  Service  of  process. 

498.  Pleadings  in  general. 

499.  Same  continued — nature  of. 

500.  Same  continued — special  statutes — amount  of  damages. 

501.  Same  continued— copy  of  telegram — part  of  pleading. 

502.  Same  continued — amendments  liberally  allowed. 

503.  Action — 'Whether  in  contract  or  in  tort. 

504.  Actions  for  statutory  penalty. 

505.  Plea  to  the  declaration. 

506.  The  issue. 

507.  Presumption  of  negligence — burden  of  proof. 

508.  Same  continued — effect  of  stipulation. 

509.  Evidence. 

510.  Same  continued — illustrations. 

511.  Question  for  jury. 

512.  Instructions  to  juries. 

513.  Withdrawing  the  case  from  the  jury. 


§  492.     Scope  of  chapter. 

In  this  chapter  we  desire  to  discuss  pleading,  practice  and  proced- 
ure, generally,  which  has  been  found  to  be  of  use  and  importance  in 
litigations  against  telegraph  and  telephone  companies.  This  is  a 
treatise  upon  substantive  law  rather  than  upon  procedure,  and  we 
shall  not  therefore  undertake  to  discuss,  at  any  great  length,  the  sub- 
ject of  pleading  and  practice.  The  subject  has  been  most  fully  and 
ably  discussed  by  other  text-writers  while  writing  particularly  upon 
that  subject,  and  we  shall  only  refer  to  these  works.  We  shall  here 
consider  merely  such  additional  matters  on  this  subject  as  most  fre- 
quently arise,  and  are  of  practical  use  in  telegraphic  litigations. 

(467) 


468  TELEGRAPH   AND  TELEPHONE   COMPANIES.  ["^    493 

§  493.     Character  of  action. 

We  have  discussed  in  a  previous  chapter  the  character  or  nature  of 
actions  brought  against  telegi-aph  companies,  so  we  shall  only  supph- 
ment  what  has  already  been  said.  The  character  or  nature  of  an  ac- 
tion against  these  companies  is  proj)erly  one  ex-contractii,  and  is 
based  upon  the  contract  of  sending,  although  it  differs  in  some  degTce 
from  ordinary  actions  for  breach  of  contract,  owing  to  the  public 
character  of  the  company.  There  are  few,  if  any,  cases  directly  ad- 
judicating this  subject,  but  it  seems  that  the  actions  are  analogous  to 
that  of  actions  against  carriers  of  passengers.  In  such  cases,  the  ac- 
tion is  in  tort  for  the  breach  of  public  duty  created  by  the  contract  of 
carriage.  There  is  authority  ^ — and  we  think  correctly  given- — • 
which  holds  that  the  addressee,  when  he  does  not  stand  in  privity  to 
the  contract  of  sending,  must  sue  in  tort;  but  underlying  this  is  a 
breach  of  a  contract,  out  of  which  grows  the  breach  of  the  company's 
public  duty.  While  the  addressee's  action  may  be  in  tort,  yet  if  it 
had  not  been  that  the  company  was  guilty  of  a  breach  of  the  contract 
of  sending,  it  would  not  be  liable  in  an  action  in  tort.  The  reason 
why  the  nature  of  the  action  should  be  considered,  as  said  elsewhere,^ 
is  that  the  measure  of  damages  is  different  in  the  two  actions.  An- 
other reason  is,  that  the  statute  of  limitation  may  run  against  a  suit 
in  one  and  not  in  the  other.  For  instance,  there  are  statutes  in  most 
of  the  states  which  provide  that  all  actions  in  tort  against  corpora- 
tions for  negligence,  must  be  brought  within  a  certain  time  after  the 
commission  of  the  negligent  act.  These  statutes  are  not  applicable  to 
actions  in  contract  brought  against  the  same  company. 

§  494.     Same  continued — distinction  between  an  altered  message, 
and  one  not  sent  or  delivered. 

It  was  held,  in  one  case,  that  there  was  a  distinction  in  the  nature 
of  an  action  to  be  brought  by  the  addressee  for  a  loss  sustained  by  the 
company  negligently  delivering  a  changed  or  altered  message,  and  an 
action  for  a  failure  to  transmit  or  deliver  the  message.  It  was  held, 
in  the  first  of  these  cases,  that  the  action  sounded  in  tort,  and  is  dif- 
ferent from  that  where  the  sender  sustains  a  loss  for  a  non-delivery.^ 

'See  chapter  XIX.  (Pa.),   8    Atl.    172.     See,   also,   N.   Y., 

2  See  chapter  XIX.  etc.,   Tel.    Print.     Co.    v.   Dryburg,    33 

»West.      U.     Tel.     Co.     v.     Richman      Pa.  St.  298,  78  Am.  Dec.  338. 


(^  49-)J  rLi:Abi.\<i,  puactice  and  kviuexce. 


-1  <jO 


This  decision  has  not  boon  followed  l)y  at  least  one  eourt,and  we  think 
that  the  reasons  upon  which  this  holding  is  based,  are  unsound.  It  is 
the  duty  of  the  company  to  follow  the  exact  words  of  the  message, 
and  it  cannot  transmit  the  message  in  words  other  than  those  con- 
tained therein,  althouiih  the  company  may  intend  to  convey  the  same 
thought.  When  it  fails  to  perfonn  this  duty,  the  addressee  or  the 
sender  may  maintain  an  action  for  such  breach  to  recover  a  loss  sus- 
tained thereby.  It  would  be  the  addressee's  only  remedy,  where  he 
was  not  a  beneficiary  to  the  contract  of  sending;  and  the  sender  may 
maintain  his  action  for  the  breach  of  the  contract  or  for  the  breach  of 
its  public  duty.  It  is  also  one  of  the  duties  of  these  companies  to 
transmit  and  deliver  promptly  all  messages  tendered  it,  and  on  a 
failure  to  do  so,  the  company  may  be  liable  either  in  contract  or  in 
tort.  So,  we  cannot  see  that  there  is  any  distinction  in  the  two  kinds 
of  action. 

§  495.     Action — by  mandamus. 

The  public  nature  of  the  duties  of  telegraph  and  telephone  com- 
panies is  such  that  performance  may,  in  some  instances,  be  enforced  by 
mandamus.^  Some  of  the  duties  of  these  companies  are  primarily  a 
duty  which  they  owe  to  the  public,  but  there  is  a  particular  or  specific 
right  in  every  member  of  the  public  to  enforce  a  performance  of  these 
duties.  Thus,  it  seems  that,  if  the  company  should  refuse,  without  a 
legal  excuse,  to  accept  a  message  for  transmission,  it  may  be  forced  to 
do  so  by  a  writ  of  mandamus.  While  the  injured  party  may  have  an 
action  against  the  company  arising  in  tort  or  contract  for  such  re- 
fusal, yet  in  certain  cases,  w-e  think,  the  company  may  be  compelled 
to  transmit  the  message  by  mandamus  proceedings.  So,  also,  if  any 
of  these  coiupauies  should  discriminate  in  their  business  against  any 
members  of  the  ]uil)li(',  they  may  lie  forced  by  mandamus  to  discon- 
tinue such  discrimination.''     Thus,  if  a  telephone  company  should  re- 

♦Gwynn   v.   Citizens'   Tel.   Co.,   69   S.  C.  83,  39  S.  E.  257,  55  L.   R.  A.   139, 

C.    43-1,    48    S.    E.    460,    67    L.    E.    A.  85  Ain.   St.  Eep.   870:   Central  U.  Tel. 

Ill,  104  Am.   St.  Rep.  819,  and  note;  Co.    v.    Falli'V.    IIS    Ind.    194.    10    Am. 

Patwin     riace     v.    Topcka   R.    Co.,    51  St.  Rep.   114;    State  v.    Nebraska    Tel. 

Kan.    600.    33     I'ae.     309.   37   Am.    St.  Co.,   17   Neb.    126.   52    Am.    Rep.    404. 

Eep.   312.   and   note.  Maiulamus.    however,    does    not   lie  to 

''State   V.   Citziens'    Tel.     Co.,   61    S.  compel   the   performance   of   an   unlaw- 


470  TELEGEAPH  AND   TELEPHONE   GOMPANIES,  [<^    4'95 

fuse  to  furnish  its  facilities  to  any  one  who  offers  to  comply  with  the 
rules  of  the  company,  it  could  be  forced  to  furnish  such,  by  a  writ 
of  mandamus.^  It  is  true  that  mandamus  is  an  extraordinary 
remedy  and  cannot  be  resorted  to  where  ordinary  remedy 
will  afford  complete  relief,  but  in  some  cases  the  latter 
remedy  will  not  afford  ample  and  complete  relief,  and  when  such  is 
the  case,  we  think  that  the  extraordinary  remedy  may  be  resorted  to. 
.We  do  not  mean  to  be  understood  as  saying  that  the  sender  of  a  mes- 
sage could,  in  every  particular  case,  compel  a  company  to  transmit  a 
message  by  mandamus,  but  if  it  continued  to  refuse  to  transmit  any 
and  all  proper  messages  tendered  it,  the  company  could  be  compelled 
to  perform  this  duty  by  mandamus.  There  may  be  instances,  how- 
ever, where  it  could  be  forced  by  mandamus  to  transmit  even  one 
message,  but  as  a  general  rule  the  ordinary  remedy  should  be  re- 
sorted to  in  such  cases. 

§  496.     Action — injunction — specific  performance. 

In  some  cases  the  proper  action  to  be  brought  against  telegraph 
and  telephone  companies  for  failure  to  carry  out  their  duties,  is  by 
injunction,"  or,  by  its  complement,  an  action  for  specific  performance. 
It  is  hardly  necessary  to  discuss  these  actions,  since  there  is  nothing 
new  in  the  procedure,  in  either  of  them,  which  is  particularly  appli- 
cable to  these  companies.  But  suffice  it  to  say,  that  if  they  refuse  to 
carry  out  any  contract  entered  into  between  them  and  an  individual, 
they  may  be  compelled  to  do  so  by  an  action  for  specific  performance 
of  the  contract;  or,  should  either  attempt  to  discontinue  service  to 
any  person,  such  person  would  have  a  right  to  enjoin  them  from  so 
doing.     In  other  words,  whenever  an  individual  could  enjoin  another 

ful   act:      Godwin   v.   Tel.    Co.,   13G  N.  283.     See,  also,   Central   Dist.  Tel.   Co. 

C.  258,    48  S.  E.  636,     67     L.    R.    A.  v.  Com.,   114  Pa.   St.  592.  7  Atl.  926. 

251,   103  Am.  St.  Rep.  941.       In  this  And   where   the    service    is    wrongfully 

case    the    company    refused   to    furnish  discontinued,    the     subscriber     is     enti- 

a   bawdy-house   with  its  facilities,   and  tied  to   recover  such   damages   as  were 

it  was  held  that  it  could  not  be  forced  the   direct   result   of   the   wrong:    Cum. 

to   do   so   by   mandamus.  Tel.,  etc.,  Co.  v.  Hendon,  71  S.  W.  435, 

«Id.  *  24    Ky.    L.     Rep.     1271;     Malochee     v. 

'Louisville   Transf.   Co.   v.   American  Great   Southern   Tel.,   etc.,   Co.,   49   La. 

Diitc.    Tel.   Co.    (Ky.),   24   Alb.   L.   J.  Ann.   1690. 


<5,  497]  PLEADING,  PRACTICE  AND  EVIDENCE.  471 

person  for  doiiii!^  or  not  doing  a  particular  act,  ho  may  also  enforce 
the  same  remedy  against  these  companies. 

§  497.     Service  of  process. 

Before  judgment  can  be  legally  entered  against  one  of  these 
companies  for  damages  sustained  for  the  breach  of  any  of  its  duties, 
or  before  judgment  can  be  rendered  for  any  cause,  the  company  must 
first  have  been  summoned  to  come  into  court  to  plead,  answer  or  de- 
mur to  the  pleadings  of  the  plaintiff.  We  shall  only  briefly  state  the 
manner  in  which  this  process  may  be  legally  served,  since  there  is  no 
difference  in  the  manner  of  service  on  these  corporations  to  that  prac- 
ticed in  cases  where  other  similar  corporations  are  concerned,  and 
which  may  be  found  discussed  at  greater  length  in  treatises  on  cor- 
porations in  general.  At  common  law,  process  against  a  corporation 
was  by  writ  of  summons  against  some  one  of  its  agents,  and  in  case 
no  appearances  was  made,  then  by  a  distringas  against  its  goods;  so, 
that  if  the  corporation  had  neither  land  nor  other  property,  there  was 
no  way  to  compel  its  appearance  either  at  law  or  in  equity.^  The 
manner  of  process  upon  corporations  is  now  generally  regulated  by 
statutes  in  most  all  the  states  of  the  Union.  So,  we  refer  the  reader 
to  the  statutes  of  his  own  state  for  a  consideration  of  this  subject. 
The  statutes  of  most  of  the  states  are  somewhat  similar,  and,  as  a 
general  rule,  they  all  provide  for  the  service  to  be  on  some  agent  or 
employee  of  the  company.  Speaking  more  specifically  of  telegraph 
and  telephone  companies,  a  service  upon  one  of  their  agents,  opera- 
tors or  managers  in  the  county  through  which  their  lines  run,  is  suffi- 
cient for  a  suit  brought  in  that  county.  If  there  is  any  doubt  of  the 
]ierson  being  the  company's  agent,  any  facts  which  go  to  show  that 
he  is  working  for  the  company,  such  as  receiving  money  for  it  while 
in  an  office  over  whose  doors  may  be  found  the  defendant's  name,  is 
of  itself  prima  facie  evidence  that  he  is  the  employee  of  -the  com- 
pany, and  one  on  whom  service  may  be  made.^  These  statutes  gen- 
erally provide  that  the  seiwice  shall  be  made  on  certain  officers  or 

'  1   Minor's  Inst.  nfi.").  n  Black.  Com.       South   Carolina   IJ.   Co.,   1   Strobh.   73. 
447,  477:   ^McQueen  v.   Middleton  Mfg.  "Thompson    v.    West.     U.     Tol.     Co.. 

Co.,    16   Johns.    (N.    Y.)     .') ;    Glaize   v.       ^07  N.  C.  449,  12  S.  E.  427. 


472  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    497 

agents  of  the  company,  as  the  operator,  agent,  manager  or  some  other 
employee  of  the  company,  and  a  summons  on  any  other  than  one  of 
these  "VTonld  not  be  sufficient. 

§  498.     Pleadings  in  general. 

■  The  manner  of  pleading  in  the  several  states  with  respect  to  the 
time  when  the  complaint,  petition  or  declaration  shall  be  filed  witli 
the  clerk  of  the  court  in  which  the  case  is  to  come  up,  is  not  the  same. 
In  some  states  the  first  step  to  be  taken  in  bringing  a  suit  is  the  filing 
of  the  declaration,  petition  or  complaint  with  the  court,  from  which 
summons  must  then  be  served  upon  the  defendant  to  the  suit  within 
a  certain  time  of  the  return  term ;  while  in  others  the  first  step  is  the 
summoning  of  the  defendant  into  court  to  answer,plead  or  demur  to  a 
certain  charge.  In  the  latter  method  of  procedure,  the  declaration  or 
complaint  must  be  filed  within  a  certain  time  before  the  return  term. 
In  either  instance,  the  defendant  must  have  time  to  examine  the 
pleadings  in  order  to  meet  the  allegations  contained  therein.  There  is 
also  a  difference  in  the  length  of  time  provided  for  in  the  several 
states  within  which  the  pleadings  must  be  filed  with  the  clerk  of  the 
court.  In  most  of  the  states  the  first  term  of  the  court  after  the  fil- 
ing of  the  case  is  the  return  term,  and  the  next  succeeding  term  is 
the  trial  term ;  yet  in  other  states,  Mississippi  for  instance,  there  are 
statutes  which  provide  that,  if  the  suit  is  brought  thirty  days  before 
the  first  term,  it  shall  be  the  trial  term.  These  statutes  are  in  states 
where  the  courts  are  few  and  the  object  is  not  to  delay  the  trial  of 
the  cause  too  long  before  hearing. 

§  499.     Same  continued — nature  of. 

There  is  nothing  peculiar  about  the  pleadings  in  actions  against 
telegraph  companies  for  damages,  since  in  such  cases  the  recognized 
rules  of  pleading  are  applicable.  The  declaration  or  complaint  of 
the  plaintiff  must,  of  course,  allege  the  facts  necessary  to  sustain  the 
action.  Thus,  it  must  in  some  manner  state  that  the  company  is  a 
corporation  and  has  a  line  of  wires  in  the  county  in  which  the  suit  is 
brought.  It  should  also  aver  that  the  message  was  delivered  to  the 
company  for  transmission,  and  that  the  charges  were  paid  or  ten- 
dered, although  this  is  not  essential.     If  the  action  is  brought  by  the 


<§!  500]  PLEADING,  PRACTICE  AND  EVIDENCE.  473 

addressee,  in  contract,  ho  should  aver  in  tiie  (U-chiraUon  that  the  sen- 
der was  acting  as  his  agent  in  that  particular  instance.^'*  If  the  ac- 
tion is  in  contract,  the  contract  of  sending  must  be  sufficiently 
pleaded;  ^^  and,  if  in  tort,  the  allegation  must  show  that  the  failure 
of  the  message  to  reach  its  destination  promptly  and  correctly  was 
caused  by  the  negligence  of  the  company  in  transmitting  it.^^  The 
blank  forms  of  these  companies  generally  contain  a  stipulation  to  the 
effect  that  the  messages  shall  be  presented  for  transmission  in  writ- 
ing, but  it  is  not  necessary  for  the  declaration  to  aver  this  fact,^"  be- 
cause, when  the  company  has  accepted  the  message  it  is  presumed 
that  it  has  waived  this  right,  or  rather,  it  is  estopped  from  claiming 
the  right  after  the  message  has  been  accepted. 

§  500.     Same  continued — special  statutes — amount  of  damages. 

In  some  states  there  are  statutes  which  provide  that  the  plaintiff 
may  recover  statutory  damages  with  special  damages ;  and  in  a  case 
where  the  claim  is  for  both,  the  declaration  is  not  necessarily  demur- 
rable for  the  reason  that  the  former  could  not  be  recovered,  because 
the  negligent  act  was  committed  in  another  state.  ^^  The  amount  and 
character  of  the  damages  should  be  set  out  in  the  declaration ;  that  is, 
whether  the  damages  claimed  are  actual  or  exemplary.^"  Thus,  a 
complaint  alleging  an  error  in  the  transmission  of  a  telegram  whereby 
the  plaintiff  was  prevented  from  buying  certain  goods,  asking  a  cer- 
tain sum  as  special  damages,  without  alleging  any  facts  going  to  show 
such  damages,  will  not  sustain  a  judgment  for  more  than  nominal 
damages.^®  It  seems  however,  that  if  the  claim  is  for  general  damages, 
the  plaintiff  may  recover  for  mental  suffering  with  other  damages.^^ 

'"West.   U.   Tel.   Co.    v.    Wilson.    93  "Alexander  v.  West.  U.  Tel.  Co..  G7 

Ala.    32,   9    So.    414.   30    Am.    St.    Rep.  Miss.  386,  7   So.  280. 

23.  "McAllen   v.    West.   U.   Tel.   Co.,   70 

»Id.  Tex.  243,  7   S.   W.  715. 

"Washington,  etc.,  Tel.   Co.   v.   Hob-  "  Achenson  v.   West.  U.  Tel.  Co.,  90 

son,  15  Gratt.    (Va.)    122.  Cal.  235,  31   Pac.  44. 

"West.    U.   Tel.    Co.   v.     Wilson.     93  ••  So   Relle  v.   West.   U.   Tel.   Co.,   55 

Ala.    32,    30    Am.    St.    Rep.    23,    9    So.  Tex.  308,  40  Am.  Rep.  305. 
414. 


474  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  [§    501 

§  501.     Same  continued — copy  of  telegram — part  of  pleading. 

In  most  of  the  cases  brought  against  telegraph  companies  to  recover 
damages  for  the  negligent  transmission  or  delivery  of  a  message,  the 
message  is  written  out  in  the  declaration.  This  is  usually  done  to 
better  show  that  there  was  a  contract  made,  and  also  to  show  that  the 
company  was  informed  by  the  face  of  the  message  of  its  importance. 
In  furtherance  of  this  proof,  they  often  attach  a  copy  of  the  telegram 
to  the  pleadings,  and  ask  that  it  may  be  made  a  part  thereof.  When 
the  request  is  made,  it  is  generally  held  that  all  the  reasonable  stipu- 
lations contained  in  the  blank  become  a  part  of  the  pleadings. -^^  We 
may  say  that  all  of  the  printed  contracts  in  this  form  are  made  a  part 
of  the  pleadings,  but  the  company  can  take  advantage  only  of  those 
which  are  reasonable. 

§  502.     Same  continued — amendments  liberally  allowed. 

The  strictness  with  which  the  common-law  rule  regarded  the  plead- 
ings brought  against  private  persons  and  corporations  has  been 
greatly  obviated  by  the  liberal  allowance  of  statutes  in  most  of  the 
states  in  allowing  amendments  to  them.  It  has  become  so,  by  these 
statutes,  that  almost  any  reasonable  amendment  may  be  made  to  the 
complaint  or  declaration  of  the  plaintiff ;  and  where,  under  the  com- 
mon-law rule,  the  plaintiff  may  have  been  demurred  out  of  court,  he 
may,  under  the  statute  rule,  reinstate  his  ease  by  an  amendment  of 
the  error  made  in  the  declaration.  Thus,  where  the  declaration 
averred  that  the  message  was  delivered  to  the  company  at  a  certain 
place  on  the  line,  but  in  fact  it  was  delivered  at  another  place,  the 
declaration  may  be  amended  so  as  to  correct  the  mistake^^  The 
amendment  may  go  further  and  show  that  the  message  was  delivered 
to  another  company  other  than  the  defendant,  but  accepted  by  the 
latter;  -'^  but,  in  such  a  case,  it  seems  that  it  must  be  shown  that  the 
defendant's  negligence  was  the  cause  of  the  loss.  A  misnomer  mai 
he  amended  if  the  defendant  it  not  prejudiced  in  his  rights.  The  dec- 
laration may  be  amended  so  as  to  show  a  different  amount  and  the 

"Slienill   V.   West.    U.    Tel.    Co.,    10!)  "•  Con  vers   v.   Tostal   Tel.     Cable    Co., 

N.   C.   2.57,   14    S.    E.    94.      See,    also,  92  Ga.  (ili).    lii   S.   E.   253,  44  Am.   St. 

Loper    V.    West.    U.    Tel.    Co.,    70    Tex.  Rep.    100. 

G89,  16  Am.  St.  Eep.  864.  =»  Id. 


<§    503]  PLKADIXG^  PRACTICE  AXD   EVIDENCE.  47r» 

character  of  the  <liiiiKii^e3  churned.  But  we  think  il"  ihe  negligent 
act  of  the  defendant  occurred  in  a  certain  manner,  an  amendment 
cannot  he  made  without  the  defendant  haviiiir  a  g-round  for  contin- 
uance of  the  cause,  where  the  act  is  averred  as  having  occurred  other- 
wise, and  materially  different  to  that  first  alleged  in  the  pleadings. 
It  is  unnecessary  to  discuss  this  subject  further,  since  there  have 
been  volumes  more  ably  written  on  this  particular  subject  which  are 
available. 

§  503.     Action — whether  in  contract  or  in  tort. 

Sometimes  it  becomes  difficult  for  the  court  to  decide  whether  the 
action  is  brought  for  a  breach  of  the  contract  of  sending  or  whether 
it  is  for  a  breach  of  its  public  duty.  In  order  to  determine  this  fact, 
the  court  should  look  to  the  nature  of  the  cause  of  action  stated  in  the 
complaint  or  declaration,  and  if  the  special  contract  is  not  set  out 
they  will  generally  construe  the  pleadings  as  founded  in  tort."^  It 
has  been  held  that  where  the  action  is  founded  on  a  special  contract 
and  a  breach  thereof  resulting  in  damages  to  the  plaintiff,  it  is  not 
necessary  to  allege  in  the  complaint  that  the  defendant  is  a  public 
corporation,  or  a  common  carrier  for  hire,  where  it  is  made  so  by 
statute;  but  where  the  action  is  founded  in  tort,  or  a  breach  of  its 
public  duties,  it  is  necessary  to  state  these  facts,  or  averments  equi- 
valent thereto.--  Sufficient  facts  must  be  averred  to  show  that  it  has 
public  duties  to  perform,  and  that  it  has  failed  to  discharge  these  to 
the  injury  of  the  plaintiff.-'  It  is  generally  held  that  a  declaration 
is  demurrable  where  it  contains  two  counts,  one  where  it  is  averred 
that  the  defendant  is  guilty  of  a  breach  of  a  contract  and  the  other 
which  alleges  that  it  has  negligently  failed  to  discharge  its  public 
duty.-*  In  other  \vords,  counts  in  tort  and  counts  in  contract  cannot 
l)e  joined  in  the  same  action. 

='Frink   v.    Potter.    17    111.   400;    Heil  0    Bavb.     (N.    Y.)     158;    Southern    Ex. 

V.  St.  Louis,  etc..  1!.  Co..   U".  Mo.  App.  Co.  v.  McVeigh.   20  Gratt.    (Va.)    264. 

363:  Atlantic  R.  Co.  v.  Laird.  58  Fed.  =MVe.st.    U.    Tel.    Co.    v.    Wil#on,  93 

760;     New    Orleans,    etc.,    R.     Co.    v.  Ala.    32,    30    Am.    St.    Rep.    23,    9    So. 

Hurst,     36     Mi.-^s.     660:   TToirn  v.  Mc-  414. 

Canghan.  32  :Miss.   17.  =*  Norfolk,   etc..   R.   Co.   v.   Wysor,   S2 

"M'.vistol    V.    R(ii-sclaor.   etc.,   R.   Co.,  Va.   2.i0. 


476  TELEGRAPH  a>;d  telepho>e  co:\[panies.  [§  504 

§  504.     Actions  for  statutory  penalty. 

Eollowiuii'  ibc  general  rule  tiiat  penal  statutes  must  be  strictly 
construed,  it  is  held  that  the  pleadings  in  an  action  brought  against 
telegraph  companies  to  recover  a  statutory  penalty,  are  usually  en- 
forced with  more  strictness  than  pleadings  in  the  ordinary  actions  to 
recover  damages.  The  complaint  or  declaration  must  allege  all  the 
facts  necessary  to  bring  the  case  not  only  within  the  letter  of  the  stat- 
ute but  within  its  spirit  as  well.-^  Thus,  it  must  allege  that  the 
charges  were  paid  or  tendered,  and  that  the  case  comes  within  the 
statute.-*^  So,  if  the  statute  provides  that  only  such  companies  as  are 
"engaged  in  telegraphing  for  the  public,"  and  the  allegations  in  the 
complaint  state  that  it  was  "engaged  in  the  business  of  transmitting 
telegraphic  dispatches  for  hire,"  this  will  not  be  a  compliance  with 
the  statute.  2"  A  statutory  penalty  cannot  be  recovered  w^here  the 
complaint  avers  that  the  defendant  negligently  transmitted  a  mes- 
sage whereby  he  suffers  a  loss,  when  the  statute  provides  that  the  re- 
covery can  only  be  had  where  the  company  has  negligently  delayed 
the  delivery  of  the  message,  or  vice  versar^  It  is  not  necessary  for 
the  copy  of  the  message  to  be  set  out  in  the  pleading  in  these  cases  ;^^ 
nor  is  it  necessary  that  it  should  negative  matters  of  defense."*^  Thus, 
where  the  rule  of  the  company  is  that  it  will  deliver  all  messages  free 
of  charge  within  the  free-delivery  limit,  it  is  not  necessary  for  the 
declaration  to  contain  an  averment  that  the  addressee  lived  within 
the  free-delivery  limits,  since  if  such  .should  not  be  the  facts,  it  is  a 
defense  to  be  used  by  the  company.^  ^     It  is  a  general  rule  of  proced- 

'^West.   U.  Tel.   Co.  v.  Kinney,    106  West.  U.  Tel.  Co.,  4.5  S.  Car.  344,  55 

Ind.   468;    Greenberg   v.   West.   U.   Tel.  Am.  St.  Rep.  763,  23  S.  E.   143. 

Co.,  89  Ga.  754.  "West.  U.  Tel.    Co.    v.    Axtell,    69 

-'West.   U.  Tel.  Co.    v.    Mossier,    95  Ind.    199;    West.    U.   Tel.    Co.   v.    Rob- 

Ind.   32;    West.  U.   Tel.  Co.  v.   Fergu-  erts,  87  Ind.  377;  West.  U.  Tel.  Co.  v. 

son,   57   Ind.   495.  Adams,  87  Ind.  598,  44  Am.  Rep.  776. 

In  a  common  law  remedy  to  recover  =^  Wilkins   v.    West.    U.    Tel.    Co.,    68 

damages,   it   is  not  necessary  to  show  Miss.  6,  8  So.  678. 

that  the  charges  were  paid:    West.  U.  =»  West.   U.  Tol.   Co.   v.   Meredith.   95 

Tel.  Co.  V.  Meek,  49  Ind.  53;  Milliken  Ind.  93. 

V.  West.   U.   Tel.   Co.,    110  N.  Y.   403.  =»  Cowan   v.    West.    U.   Tel.    Co.,    122 

But   all    the   facts   enumerated    in   the  Iowa  376,  98  N.  W.  281,   101  Am.   St. 

statute  as  necessary  to  render  the  con-  Rep.  268;   West.  U.  Tel.  Co.  v.  Hender- 

tract  valid,   must  be   shown:      Gist   v.  son,  89  Ala.  510,  7  So.  419. 

"Id. 


>§    505]  PLEADING,   PRACTICE   AXD   EVIDENCE.  477 

lire  that  tlie  proof  must  be  consistent  with  the  averments  in  the  plead- 
ings, but  if  the  variance  is  on  immaterial  allegations,  the  complaint 
will  be  good.^-  It  is  only  where  the  variance  is  on  material  aver- 
ments that  the  rule  is  api)lica])]e.  If  the  message  was  delivered  to 
the  company  on  Sunday,  the  declaration  must  allege  its  necessity  of 
being  sent  on  that  day,  in  order  to  recover  nnder  these  statutes.^^ 

§  505.     Plea  to  the  declaration. 

At  the  common  law,  whether  the  action  sounded  in  contract  or  m 
tort,  it  was  generally  sufficient  for  the  company  to  plead  the  general 
issue,^*  and  a  general  denial  will  be  sufficient  in  the  states  in  which 
the  code  procedure  is  used,  but  as  new  matter  must  be  specially 
pleaded  under  the  code,  it  will  sometimes  be  necessary,  or  rather  ad- 
visable, to  answer  specially.'^'"'  Thus,  if  the  claim  is  not  presented 
within  the  required  time,  or  if  the  message  was  not  ordered  to  be  re- 
peated, or  if  there  is  a  failure  on  the  part  of  the  plaintiff  to  comply 
with  any  of  the  stipulations  contained  in  the  message  blank,  the  plea 
should  specially  aver  these  facts.  If  the  message  is  sent  in  cipher, 
and  the  company  is  not  informed  of  its  importance,  an  averment  of 
this  fact  should  be  made ;  and  it  will  be  an  error  in  the  court  to  strike 
from  the  plea  such  an  averment.^^  The  plaintiff  should  have  notice 
of  the  rules  of  the  company  in  order  for  them  to  be  binding  on  him ; 
and  if  a  plea  to  a  complaint  against  one  of  these  companies  avers 
that  a  message,  received  for  transmission,  was  written  on  one  of  the 
blanks  upon  which  the  requirement  for  notice  of  damages  within 
sixty  days  was  printed,  and  was  sent  subject  to  the  contract  expressed 
thereon  and  of  which  this  requirement  was  a  part,  it  is  equivalent  to 
an  averment  of  notice  of  the  rule  on  plaintiff's  part.^" 

■"Thus,  -where  the  complaint  alleged  "Missouri   Pac.   R.    Co.    v.    Wichita, 

that   the   message   sent   in  March,   the  etc.,    Co.,   55    Kan.    525,   40   Pac.   899; 

plaintitT   might    still    show   it   to   have  Atchison,  etc.,  R.  Co.  v.  Bryan   (Tex.) 

been  sent   in   January:      West.   U.  Tel.  28   S.    W.    98. 

Co.  V.  Kilpatrick,  97*  Ind.  42.  =""^1111    v.    West.    U.    Tol.    Co.,   42    S. 

=^West.   U.   Tel.   Co.   v.     Yopst.     118  Car.    367,    40    Am.    St.    Rep.    734.    20 

Ind.  248;   West.  U.  Tel.  Co.  v.  Griffin,  S.  E.  135. 

1   Ind.  App.  46.  "Harris   v.    West.    U.   Tel.   Co.,    121 

"Hutchinson  on  Carriers,    (2     Ed.),  Ala.  519,  25  So.  910,  77   Am.  St.  Rep. 

§758;   I.  C.  R.  Co.  v.  Johnson.  34  111.  70. 
389;   St.  Louis,  etc.,  R.  Co.  v.  Knight. 
122  U.  S.  79,  7  Sup.  Ct.  R.  1132. 


478  TELEGKAPH  AND  TELEPHONE   COMPANIES.  [§    50G 

§  506.     The  issue. 

In  an  action  brought  against  a  telegraph  company  for  damages,  the 
recovery  will  be  limited  as  in  all  other  cases  against  corporations  or 
jirivate  persons,  to  the  issue  involved,  and,  it  seems  that,  if  the  com- 
plaint counts  entirely  upon  the  failure  of  the  company  to  promptly 
deliver  the  message,  he  cannot  recover  where  the  loss  has  been  sus- 
tained by  a  negligent  transmission.^^  In  such  a  case,  however  the 
pleadings  may  be  amended  so  as  to  be  consistent  with  the  proof.  In 
an  action  to  recover  damages  for  the  death  of  a  horse,  caused  by  the 
delay  of  the  company  in  delivering  a  message  requesting  the  atten- 
dance of  a  veterinary  surgeon,  the  sole  issue  is  whether  such  death 
was  due  to  delay  in  the  treatment,  caused  by  the  failure  to  deliver 
the  message,  regardless  of  negligence  in  the  treatment  of  the  horse  af- 
ter the  dispatch  was  delivered."^ 

§  507.     Presumption  of  negligence — ^burden  of  proof. 

In  ordinary  actions  brought  to  recover  damages  for  personal  inju- 
ries, there  is  probably  no  presumption  of  negligence  against  either 
party;  the  mere  fact  of  injury  being  sustained,  creates  no  such  pre- 
sumption, except  where,  from  the  peculiar  circumstances  involved, 
the  familiar  maxim  of  res  ipsa  loquitur  is  applicable.^^  But  where 
an  action  is  brought  to  recover  damages  from  a  telegraph  company 
for  negligently  transmitting  or  delaying  in  the  delivery  of  a  message, 
the  rule  is  different.  In  such  cases,  where  it  is  shown  that  a  message 
has  been  delivered  to  it  and  an  error  has  been  made  in  its  transmis- 
sion;^^ or,  that  a  delay  has  been  made  in  its  delivery;^-  or,  that  it 

^Connell  v.   West.  U.  Tel.   Co.,    116  434,  14  S.  W.  649;   West.  U.  Tel.  Co. 

Mo.  34,  22  S.  W.  345,  20  L.  E.  A.  172  v.   Griswold,  37  Ohio  St.  303,  41   Am. 

38    Am.    St.   Rep.    575.  Rep.   500;    West.   U.   Tel.   Co.   v.   Crall, 

«»Hendershot   v.    West.    U.    Tel.    Co.,  38  Kan.  679,   17  Pae.  309,  5  Ain.   St. 

106  Iowa  529,  08  Am.  St.  Rep.  313,  76  Rep.  975;  West.  U.  Tel.  Co.  v.  Dubois, 

N.  W.  826.  128   111.  248,   15  Am.   St.   Rep.   109,  21 

^Thompson  on  Neg.    1227-1235,  §3;  N.  E.  4;    Reed   v.    West.    U.    Tel.    Co., 

Cooley  on  Torts  796;   Shear.  &  Red.  on  135  Mo.  661,  37  S.  W.  904,  58  Am.  St. 

Neg.   §59;   Wharton  on     Neg.     §§421,  Rep.  609,  34  L.  R.  A.  492. 
422;    Addison   on   Torts    17,   366;    Big-  "-Harkness  v.  West.  U.  Tel.   Co.,  73 

elow  on  Torts  596.  loAva  190,  34  N.  W.  811,  5  Am.  St.  Rep. 

^'West.  U.  Tel.  Co.  v.  Short,  53  Ark.  (.72;    Hendricks   v.    West.   U.   Tel.   Co., 


<§.    507]  PLEADING,    PKACTICE   AND  EVlDliXCE.  479 

]ias  been  ti-ansmilled  but  not  delivered;"*^  or,  that  it  has  not  been 
transmitted ;  '^^  or,  that  a  material  \vord  has  been  omitted  in  the  mes- 
sage,*^ it  is  presumed  that  the  company  has  been  guilty  of  negligence, 
and  the  burden  is  on  the  latter  to  disprove  such  negligence.^"  This 
is  the  universal  rule ;  and  when  the  plaintiff  has  shown  a  delivery  to 
the  company  and  that  an  error  has  been  made,  or  that  the  message 
has  been  delayed  in  its  delivery,  his  case  is  made  out.  The  reason  of 
the  rule  is  obvious.  If  the  burden  were  cast  upon  the  plaintiff,  he 
could  never  make  out  his  case.  It  would  be  nothing  more  nor  less 
than  a  fight  in  the  dark  to  impose  such  a  duty  upon  him,  since  the 
proof  of  these  negligent  acts  are  almost  always  in  the  sole  possession 
of  the  defendant  company.  Being  peculiarly  within  the  knowledge 
of  the  company,  it  is  no  hardship  on  them  to  be  required  to  furnish 
the  proof  of  the  causes  of  errors  or  delays.  Therefore,  one  reason 
why  we  think  the  stipulation  in  the  message  blanks  requiring  the 
claim  for  damages  to  be  presented  to  the  company  within  a  certain 
time  is  reasonable  is,  that  the  company  may  be  notified  of  the  injury 
in  time  to  make  a  prompt  investigation  of  the  matter.  The  same 
rule  will  apply  where  the  suit  is  against  one  company,  when  the  er- 
ror has  been  made  on  a  connecting  line.  The  burden  is  on  the  de- 
fendant to  show  that  the  connecting  line,  and  not  its  own  negligence, 
caused  the  loss.^'^ 

126  N.   C.   304,   35   S.   E.   543,   78   Am.  ern  Tel.   Co.,   25   La.   Ann.   383;    West. 

St.   Rep.   658;    Tol.   Co.   v.    Brown,    104  I,'.  Tel.  Co.  v.   Goodbar,    (Miss.)    7   So. 

Tenn.  56,  50  L.  R.  A.  277,  78  Am.  St.  219;    Rittenhouse   v.   Independent   Line 

Rep.   906.  Of  Tel.  44  N.  Y.  263,  4  Am.  Rep.  673 ; 

*■  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  Pearsall  v.  West.  U.  Tel.  Co.,   124  N. 

381,  6  Am.  St.  Rep.  211.  Y.  256,  21  Am.  St.  Rep.  662,  aff'g.  44 

"Id.  Hun   (N.  Y.)    532;    United  States  Tel. 

*»Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  Co.  v.  Wenger,  55  Pa.  St.  262,  93  Am. 

493,  1  Am.  St.  Rep.  353,  10  Atl.  495.  Dec.  571;  Bartlett  v.  West.  U.  Tel  Co.. 

« Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  U2  Me.  209,   16  Am.  Rep.  437;   Cowan 

41  Ark.  79;  West.  U.  Tel.  Co.  v.  Fon-  v.  West.  U.  Tel.  Co.,  122  Iowa  379,  64 

taine,   58   Ga.   433;    Tyler  v.   West.   U.  L.  R.  A.  545,  98  N.  W.  281,   101   Am. 

Tel.  Co.  60  111.  421,   14  Am.  Rep.  38;  St.  Rep.  281.     See,  also,  cases  cited  in 

West.    U.    Tel.    Co.    v.    Ward,   23    Ind.  notes  41,  42,  43,  44,  45. 

377,  85  Am.  Dec.  462;   West.  U.  Tel.  "In  De  La  Grange  v.  Southwestern 

Co.    V.    Meek,    49    Ind.    53;    Turner    v.  Tel.  Co.,  25  La.  Ann.  383,  the  defend- 

Hawkeye  Tel.  Co.,  41  Iowa  458,  20  Am.  ant  company  contended  that  it  was  not 

Rep.  605;  Do  La  Grange  v.  Southwest-  th.'  first  carrier  and  that  the  plaintiff 


480  TELEGRAPH   AND  TELEPHONE   COMPANIES.  [<§,    508 

§  508.     Same  continued — effect  of  stipulation. 

It  has  been  held  that  proof  of  delivery  of  a  message  to  the  company 
for  transmission,  and  an  error  made  in  the  transmission  or  a  delay 
in  its  delivery,  will  not  alone  anthorize  the  recovery  of  more  than  the 
price  paid  for  transmission,  where  the  contract  of  sending  contained 
special  limitations  of  the  company's  liability.  Thus,  in  some  of  those 
jurisdictions  which  hold  the  stipulation  reasonable  which  requires 
the  message  to  be  repeated,  otherwise  the  company  will  not  be  liable 
beyond  the  amount  paid  for  transmission,  it  is  held  that  such  negli- 
gence— except  for  willful  misconduct  or  gross  negligence — of  the 
company  is  not  presumed,  but  that  the  burden  is  cast  upon  the  sen- 
der to  show  such  by  independent  facts  or  by  circumstances  connected 
with  the  principal  fact."*^  It  was  at  first,  and  is  now,  difficult  to  show- 
by  what  method  the  plaintiff  can  prove  the  negligence  of  these  com- 
panies ;  but  any  independent  fact  or  circumstance,  connected  with  the 
principal  fact,  may  be  resorted  to  for  such  proof.  It  must  be  under- 
stood that  this  rule  is  only  applicable  in  those  jurisdictions  where 
such  stipulations  are  held  as  being  reasonable.'*^ 

§  509.     Evidence. 

It  does  not  matter  whether  the  plaintiff  sues  on  the  contract  of 
sending,  or  upon  the  breach  of  duty,  in  order  to  recover  damages  for 
loss  or  injury  sustained  by  an  error  made  in  the  transmission  or  de- 
failed  to  prove  that  the  error  in  trans-  Tel.  Co.,  27  Iowa  433,  1  Am.  Eep. 
mission  occurred  on  its  line,  and  show-  285;  West.  U.  Tel.  Co.  v.  Bennett,  1 
ed  an  expressed  provision  in  its  print-  Tex.  Civ.  App.  558;  Redington  v.  Pae. 
eil  blanks  that  it  would  not  be  liable  Postal  Tel.  Cable  Co.,  107  Cal.  317, 
for  errors  occurring  on  connecting  40  Pac.  432,  48  Am.  St.  Rep.  132.  See 
lines.  It  was  held  that  whether  de-  following  cases  holding  a  contrary 
fendant  was  the  first  carrier  or  not,  it  view:  Gillis  v.  West.  U.  Tel.  Co.,  01 
was  peculiarly  within  its  power,  and  Vt.  461,  17  Atl.  736,  4  L.  R.  A.  61  In, 
it  was  its  duty  to  prove  that  the  error  l.'^;  Am.  St.  Rep.  917,  and  note;  Note 
did  not  occur  on  its  line.  to  Pepper  v.  Tel.  Co.,  10  Am.  St.  Rep. 

«Womack   v.   West.   U.   Tel.   Co..   .38  711;   West.    U.    Tel.    Co.    v.    Crall,    38 

Tex.   180,   44  Am.  Rep.   014;   Aiken   v.  Kan.  679,  17  Pac.  309,  5  Am.  St.  Rep. 

West.  U.  Tel.  Co.,  69  Iowa  31,  28  N.  795;  Ayer  v.  West.  U.  Tel.  Co.,  79  Me. 

W.    419,    58   Am.   Rep.    210;    West.    U.  493,  1  Am.  St.  Rep.  353,  10  Atl.  495. 

Tel.  Co.  v.  Neill,  57  Tex.  283,  44  Am.  ^•' See  note  48  for  contra  cases. 
Rep.    589;    Sweetland   v.    Illinois,   etc., 


§  510]  PLEADING^  PRACTICE  AND  EVIDENCE.  481 

lay  in  the  delivery ;  in  either  case  he  must  prove,  in  general,  a  deliv- 
ery of  the  message  to  the  company,  a  contract  on  its  part  either  ex- 
press or  implied  to  transmit  the  message,  and  its  failure  to  perform 
the  duty  according  to  the  agreement. '^^  In  other  words,  he  must  show 
that  the  company  owes  him  a  duty  which  is  imposed  on  it  by  law,  or 
which  arises  out  of  a  contract,  and  a  breach  of  this  duty,  whereby  he 
has  suffered  a  loss  or  an  injury.  We  have,  elsewhere,  considered 
what  evidence  was  necessary  to  constitute  a  delivery ;  what  necessary 
to  constitute  a  contract;  what  presumption  arose  in  such  cases;  what 
must  be  shown  where  there  are  connecting  lines;  and,  upon  whom 
the  burden  of  proof  rests.  We  shall  later  consider,  at  some  length, 
the  admissibility  of  telegrams  as  evidence,  so  there  is  but  little  to  be 
said  at  this  place.  The  rule  for  the  admissibility  of  evidence  against 
telegraph  companies  is  the  same  as  that  in  other  cases ;  ^^  the  evidence 
must  always  be  responsive  to  the  issue  involved. °^  As  we  have  said, 
the  company  may  defend  by  showing  that  the  loss  or  injury  was 
caused  by  the  act  of  God,  by  the  public  enemy,  by  public  authority, 
or  by  the  fault  of  negligence  of  the  plaintiff.  Therefore,  any  evi- 
dence may  be  admitted  which  goes  to  show  that  the  loss  or  injury  re- 
sulted from  anyone  of  these  causes.  These  companies  may,  also,  as 
elsewhere  stated,  limit  their  common-law  duty  to  a  certain  extent 
by  a  special  contract  to  that  effect,  or  they  may  limit  their  other  lia- 
bilities by  stipulations  contained  in  the  contract  of  sending;  and 
when  the  damages  sustained  fall  within  such  limitations  or  result 
from  a  non-compliance  with  them,  evidence  which  tends  to  show  such 
facts  may  be  admitted. 

§  510.     Same  continued — illustrations. 

No  evidence  should  be  admitted  which  will,  in  any  way,  prejudice 
the  rights  of  either  the  plaintiff  or  the  company.  So,  it  is  not  proper 

="'Pearsall  v.   West.   U.  Tel.  Co.,    124  etc..  K.  Co..  G7  IMiss    399,  7  So.  350. 

N    Y.  256,  21   Am.   St.  Rep.  062;   An-  "^-Chicago,    etc.,    R.    Co.    v.    Hoeffner. 

gell  on     Carriers      (5th     Ed.),     §461;  44  111.  App.  137;  Kyle  v.  Buffalo,  etc., 

Hutchinson     on     Carriers      (2d     Ed.),  K.  Co..  10  V.  C.  C.  P.  70.     See,  also. 

§  759.     See,  also.  West.  U.  Tel.  Co.  v.  New  I-Znerland,  etc..  Co.  v.   Slarin,     60 

Dubois,   128   111.   248,   15   Am.   St.   Rep.  Conn.    300,    22    All.    953;    Spurlock   v. 

109,    21    N.    E.    4.  Missouri  Pac.  R.  Co.,  93  Mo.  530,  6  S. 

■"  Louisville,   etc.,   R.    Co.    v.    Xatces.  W.   349. 
T.  &  T.— 31 


482  TELEGKAPII   AA'B   TELEPHOJS'E   COMPANIES.  \_^    510 

to  admit  evidence  to  show  that  the  defendant  is  a  wealthy  corpora- 
tion ;  it  seems,  however,  that  such  evidence  may  be  admitted  when 
there  has  been  a  willful  injury  and  exemplary  damages  are 
claimed. ^^  Evidence  which  shows  the  embarrassed  financial  condi- 
tion of  the  sender  is  inadmissible  for  the  same  reason,  when  the  pur- 
pose of  such  is  to  have  a  bearing  on  the  question  of  damages  for  the 
loss  of  a  valuable  bargain  in  consequence  of  the  company's  negli- 
gence.^* Evidence  cannot  be  admitted  to  show  that,  for  the  alleged 
negligence,  a  deduction  had  been  made  from  the  pay  of  the  operator 
by  one  of  the  superior  officers.^ ^  Where  the  plaintiff  sues  to  recover 
damages  sustained  by  a  failure  to  deliver  a  message  to  a  physician, 
requesting  him  to  visit  the  former's  family;  evidence  which  tends 
to  show  that  the  medical  charges  were  not  prepaid  according  to  the 
physician's  practice  is  inadmissible.^'^  The  statements  or  declara- 
tions of  the  agents  or  operators  of  these  companies  are  only  admis- 
sible when  others,  similar  to  these,  are  allow^ed  in  other  cases;  that 
is,  they  can  only  be  admitted  wdien  they  became  a  part  of  the  res 
gestae."'^  The  plaintiff  may  introduce  evidence  showing  that  other 
messages  were  sent  on  th(>  same  day  as  his,  and  were  properly  trans- 
mitted and  delivered  f^  and  when  the  action  is  for  mental  suffering, 
caused  by  the  plaintiff  being  kept  away  from  the  bedside  of  his  dying 
mother,  evidence  may  be  admitted  to  show  that  the  plaintiff  was  the 
favorite  child  of  the  mother.''''  Where  the  plaintiff's  good  faith,  in 
making  a  certain  purchase  in  pursuance  of  the  erroneous  telegram,  is 
in  question,  he  may  show  his  understanding  of  the  message  and  that 
he  acted  on  the  basis  of  such  understanding.^'^      It  may  be  said,  in 

"West.  U.  Tel.  Co.  v.  Henderson,  89  10    Am.    St.    Rep.    772;    West.    U.    Tel. 

Ala.   510,   18  Am.   St.   Eep.    148,   7   So.  Co.  v.   Lydon,   82  Tex.   3G4.     See,  also, 

419.  Union  R.,  etc.,  Co.  v.  Riegel,  73  Pa.  St. 

"West.  U.  Tel.  Co.  v.  Way,  83  Ala.  72;   Green  v.  Boston,  etc.,  R.  Co.,   128 

542,  4  So.  844.  Mass.   221,   35  Am.   Rep.   370;   Bennett 

^=Grinnell  v.   West.   V.  Tel.   Co.,    113  v.    Xoithern   Pac.   R.    Co.,    12   Ore.   49, 

Mass.  299,  18  Am.  Rep.  485.  (i  Pac.    IGO;    Queen  v.    Peters,    16   New 

=^West.  U.  Tel.  Co.  v.  Henderson,  89  Bruns.   77. 

Ala.   510,    18  Am.   St.   Rep.    148,   7   So.  =»  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex. 

4  J  9.  304. 

^' Aiken   v.   West.    U.   Tel.    Co.,    5    S.  =^  Id. 

C.  358;   West.  U.  Tel.   Co.  v.  Way,  83  ""Aiken     v.     West.    U.  Tel.  Co.,     69 

Ala.  .542,  4  So.  844;   West.  U.  Tel.  Co.  l.nva    .Si.   .58   Am.   St.   Rep.   210,  28   N. 

V.  Cooper,  71  Tex.  507,  1  L.  R.  A.  728,  \V.   41!). 


-^511]  l-LKAblXG^  PKACTICE   AND  EVIDENCE.  483 

c'uuclusioii,  that  all  evidence  pertinent  to  the  substantial  issue  in- 
volved, and  tending  in  anywise  to  throw  light  on  the  whole  transac- 
tion, is  admissible.'^ ^ 

§  511.     Question  for  jury. 

It  is  always  the  rule  of  practice  that  the  court  must  decide  on  the 
admissibility  of  cNidence,  but  when  it  is  admitted  and  contradicted, 
the  jury  are  the  sole  judges  of  its  weight  and  credibility.  They 
should  consider  the  character  of  the  witnesses,  the  manner  of  their 
testifying  and  the  interest,  if  any,  which  they  may  have  in  the  re- 
sult of  the  case,  and  give  their  evidence  such  weight  as  the  circum- 
stances would  permit.  There  is  no  difference  in  the  rule  of  law  re- 
garding the  facts  to  be  deliberated  upon  in  cases,  against  telegi-aph 
companies,  and  that  arising  in  other  cases ;  but  we  shall  particular- 
ize, to  a  certain  extent,  cases  against  these  companies.  Telegraph 
companies  must  exercise  reasonable  diligence  in  delivering  telegrams, 
and  what  will  constitute  such  diligence,  in  a  particular  case,  depends 
upon  the  circumstances  of  that  case,  of  which  the  jury  are  the  exclu- 
sive judges.''-  Thus,  an  agent  of  one  of  these  companies,  who  under- 
takes to  deliver  a  message  outside  of  office  hours,  is  acting  within 
the  scope  of  his  agency,  and  the  company  is  liable  for  his  failure 
to  exercise  reasonable  diligence.  Whether  or  not  such  diligence  was 
exercised,  is  a  question  for  the  jury.^^  It  is  also  a  question  for  the 
jury  as  to  whether  the  company  exercised  reasonable  diligence  and 
care  in  delivering  the  message  to  the  addressee ;  and  where  the  latter 
is  away  from  home,  it  is  error  for  the  court  to  instruct  the  jury  that 
it  was  the  duty,  in  such  cases,  to  deliver  the  message  to  the  addressee's 
wife,  since  she  is  not,  in  law.  the  agent  of  her  husband.''"*      Where 

"'  Gulf,     etc..  R.     Co.  V.    Wilson,    69  Tex.  507,  9  S.  W.  598,  1  L.  R.  A.  728, 

Tfx.   739.   7   S.   W.   653;   United  States  10  Am.  St.  Rep.  772;  Coit  v.  West.  U. 

Tel.  Co.  V.  Wenger,  55  Pa.  St.  262.  93  Tel.    Co.,    130    Cal.    657,    53    L.    R.    A. 

Am.  Dec.  751.     See,  also,  West.  U.Tel.  078,  80  Am.  St.  Rep.  153,  63  Pac.  83. 

Co.  V.   Stevenson,    128   Pa.   St.   442,   18  ««McPeek   v.   West.   U.   Tel.   Co..   107 

Atl.   441,   5  L.  R.  A.   515,   15  Am.   St.  Iowa    356,    70    Am.    St.    Rep.    205.    43 

Rep.  087;  West.  U.  Tel.  Co.  v.  Collins,  L.  R.  A.  214,  78  N.  W.  63. 

45  Kan.  88,  25  Pac.  187.  "West.   U.   Tel.   Co.   v.   Mitchell,   91 

"West.    i:.    Tel.    Co.    v.    Cooper.    71  Tex.    454,   44   S.    W.    274,    66   Am.    St. 


4S-J:  TELEGRAPH  AND   TELEPHONE   COMPANIES  [<§>    511 

the  questiou  was  at  issue  as  to  whether  the  addressee  knew  of  the 
stipuLntioiis  contained  in  the  message  blanks,  it  must  be  determined 
by  the  jury.^^  The  question  as  to  whether  the  plaintiff  contributed 
to  the  injury  or  loss,  or  whether  it  was  the  result  of  some  uncontroll- 
able cause,  should  also  be  left  to  the  determination  of  the  jury. 

§  512.     Instructions  to  juries. 

The  jury  being  in  possession  of  all  the  evidence  in  the  case,  it  is 
the  duty  of  the  court  to  instruct  them  on  the  law  pertaining  to  the 
issue  involved ;  and  the  manner  in  which  this  is  done  is  not  different 
from  that  in  other  cases.  In  a  great  number  of  cases  brought  against 
these  companies  for  damages,  it  is  generally  alleged  that  the  loss  or 
damage  has  been  brought  about  by  the  negligence  of  the  company-, 
or  some  of  its  employees;  and  more  especially  is  this  the  case  where 
the  action  is  for  a  broach  of  its  duty.  On  the  question  of  negligence, 
a  charge  that  the  question  of  diligence  is  one  to  be  determined  by 
the  jury  from  all  the  facts  and  circumstances;  and  if  they  should 
believe  from  such  evidence  that  the  company  used  such  care  and  dili- 
gence as  a  prudent  man  under  like  circumstances  Avould  use  in  his 
own  behalf  to  deliver  the  message,  and  failed  through  no  fault  of 
his  own,  would  be  proper.*^"  If  the  objects  of  the  message  could  not 
have  been  accomplished,  even  though  the  company  had  not  been 
guilty  of  negligently  transmitting  or  delivering  it,  the  company 
should  not  be  held  liable,  and  the  jury  should  be  so  instructed  f^  and, 
where  the  averment  in  the  declaration  is  that  the  message  was  prop- 
erly transmitted  from  the  receiving  office,  the  court  should  charge 
the  jury  to  confine  their  inquiry  to  the  question  of  proper  care  or 
negligence  in  delivering  the  message,  although  there  is  evidence  that 
it  was  delayed  for  sometime  at  the  receiving  office. "^^  Where  the 
action  is  to  recover  damages  for  mental  or  physical  suffering,  it  is 

Rep.   906.      See   monographic  notes     to  ""Gulf,  etc.,    R.    Co.,    v.    Wilson,    60 

West.  U.  Tel.  Co.  v.  Houghton,  27  Am.  Tex.   739. 

St.   Rep.   923;    West.   U.   Tel.     Co.      v.  "'West.   U.   Tel.    Co.    v.    Cooper,    71 

Moore,  54  Am.  St.  Rep.  521.  Tex.  507,  9  S.  W.  .598.  1  L.  R.  A.  728, 

"'Webbe   v.   West.   U.    Tel.    Co.,    169  10  Am.  St.  Rep.  772. 

111.  610,  61  Am.  St.  Rep.  207,  48  N.  E.  «» Id. 
670. 


§  513]  PLEADING^  PRACTICE  AXD  EVIDENCE.  485 

])r(ipe'r  for  tlic  iMjurt  to  distinguish  between  suffering  actually  en- 
'lured  and  the  sutterin*:-  whicli  is  necessarily  an  incident  to  the  in- 
ducing cause  of  such  suffering.  Thus,  in  an  action  brought  to  re- 
cover damages  for  injuries  to  a  wife  by  the  failure  of  a  telegraph 
company  to  deliver  a  message  sent  to  her  physician,  the  court  should 
charge  the  jury  in  such  a  way  as  to  distinguish  between  suffering  ac- 
tually endured  by  her  and  the  suffering  necessarily  incident  to  her 
continement.'"'^  If  the  plea  of  defendant  should  contain  averments 
to  the  effect  that  the  plaintiff  contributed  to  the  loss,  and  there  is 
evidence  to  sustain  the  averments,  it  will  be  error  for  the  court  to 
charge  the  jury  that  the  defendant  is  liable,  if  they  find  that  it  neg- 
ligently transmitted  or  delivered  the  message.''^^ 

§  513.     Withdrawing  the  case  from  the  jury. 

It  often  becomes  of  the  utmost  importance  as  to  whether,  in  the 
interest  of  justice,  a  case  should  be  withdrawn  from  the  jnry  by  the 
court  or  should  be  submitted  under  proper  instructions.  Where  the 
facts  are  undisputed  and  but  one  legitimate  inference  could  be  drawn 
from  them,  the  question  becomes  one  of  law,  and  the  case  should, 
therefore,  be  decided  by  the  court.'^^  It  is  held,  therefore,  in  some 
jurisdictions  that,  if  the  evidence  is  so  conclusive  that  the  court 
would  be  compelled,  under  proper  application,  to  set  aside  a  verdict 
found  contrary  to  the  facts  in  the  case,  the  case  should  be  withdrawn 
from  the  jury."^-  A  mere  scintilla  of  evidence  is  not  suflBcient  to 
require  a  case  to  be  submitted  to  a  jury,'^^  and  if  the  plaintiff  fails 
to  prove  tlie  cause  of  action  stated  in  his  declaration,  or  a  single  and 

••Id.  "=  Randall   v.   Baltimore,  etc..  E.   Co.. 

■"West.  U.  Tel.   Co.  v.    ]\rcNair,    23  100  U.  S.  478.  3  Sup.  Ct.  R.  322;  Scho- 

So.    (Ala.)    801.  field  v.  Chicago,  etc.,  R.  Co.  114  U.  S. 

"Hathaway   v.    East   Tenn..   etc..    R.  615,   5   Sup.   Ct.   R.   1125:    INrynning  v. 

Co.,  29  Fed.  489;    Pursell    v.    English.  Detroit,  etc.,  R.   Co.,   64  Mich.   93.  31 

SO  Ind,  34,  44  Am.  Rep.  255;  Williams  IST    W.  147,  8  Am.  St.  Rep.  804;  Gnibe 

V.    Guile,    117   N.  Y.   343,   6   L.   R.   A.  v.   Missouri   Pac.   R.   Co.,   98   Mo.   330, 

366;   People  v.  People's  Ins.  Exch.  126  11  S.  W.  736,  4  L.  R.  A.  776. 

111.  466,  18  X.  E.  774,  2  L.  R.  A.  340;  "Hathaway  v.  East  Tenn..  etc..  Co.. 

McMurtry  v.  Louisville,  etc.,  R.  Co.,  67  29  Fed.  489. 
Miss.   601,  7  So.  401. 


486  TELEGRAPH  AND  TELEPHOKE   C0:MPAXIES.  [§     ')1>'> 

vital  essential  element  thereof,'^*  the  case  should  be  withdrawn  from 
the  jury  upon  proper  application.  But  if  the  facts  are  disputed  and 
the  evidence  conflicting,  or  more  than  one  inference  can  be  drawn 
from  it,  the  case  should  be  usually  left  to  the  determination  of  the 
jury."^  As  stated  elsewhere,  presumptions  may  make  out  a  prima 
facie  case,  and  when  they  do,  and  there  is  no  evidence  to  the  contrary 
it  is  proper  for  the  court  to  withdraw  the  case  from  the  juiyJ^  Thus, 
if  the  plaintiff  should  prove  a  delivery  to  the  company  and  an  error 
made  in  its  transmission  to  his  damage,  and  no  proof  is  given  oii 
the  part  of  the  company  to  contradict  such  proof,  the  case  should  be 
withdrawn  from  the  jury  on  a  proper  application  made  by  the  plain- 
tiff. A  case  may  be  withdrawn  from  a  jury  by  a  demurrer  to  the 
evidence,'^^  compulsory  nonsuit,^*  or  a  peremptory  instruction  direct- 
ing a  verdict.'^^  It  is  not  the  practice  in  all  jurisdictions  to  allow 
a  party  to  demur  to  the  evidence,  nor  that  of  moving  for  a  nonsuit, 
but  it  seems  that  nearly  all  the  courts  allow  either  party  a  peremptory 
instniction.  This  latter  method  is  generally  the  proper  way  to  with- 
draw a-  case  from  tlie  jury,  and  it  is  an  error  of  the  court,  under 
the  rules  given,  to  refuse  to  withdraw  the  case  when  the  proper  appli- 
cation and  proof  has  been  made.^''  The  motion  may  be  made  by  the 
company,  either  after  the  plaintiff  has  closed  or  after  the  evidence  on 
both  sides  has  been  concluded.^ ^  But  if  the  defendant  makes  his 
motion  at  the  close  of  the  plaintiff's  case,  and  afterwards  introduces 

^*Cordell  v.   New  York,  etc.,  R.   Co.,  ■"2     Elliott's     Gen.     P.     §§855-871; 

75    X.    Y.    330;    Meyer   v.    Manliattan,  Pennsylvania    Co.    v.      Stegemeir,      118 

etc.,  Co.,    (Ind.)    43  N.  E.  448;   Ilarri-  Incl.  305,  1  Am.  St.  Rep.  136;   I.  C.  R. 

gan    V.    Chicago,    etc.,    R.    Co.,    53    111.  Co.  v.  Brown,   (Tenn.)   35  S.  W.  560. 

App.  344.  '^Fagundes  v.  Cent.  Pae.  R.  Co.,  7!) 

"Gardner  v.  Michigan  Cent.  R.  Co.,  Cal.    07,   3   L.   R.   A.   824;    McNally   v. 

150    U.    S.    349,    14    Sup.    Ct.    R.    140;  Phoenix  Ins.  Co.,  137  X.  Y.  389,  33  X. 

Beatty  v.  Mutual,  etc.,  Assn.  75  Fed.  E.  475. 

65;    I.   C.   R.   Co.   v.   Turner,   71   :\Iiss.  ™  Merchants'  Bank  v.  State  Bank,  10 

402,  14  So.  450;  Avinger  v.  South  Car-  Wall.    (U.  S.)    037. 

olina  R.   Co.,  29   S.    C.    265,     13    Am.  «°  Carroll  v.   Interstate,  etc.,  Co.,  107 

St.   Itep.   716.  Mo.  653,  17   S.  W.  886,  17  S.  W.  889; 

""Talkington  v.  Parish,  89  Ind.  202;  Mynning  v.  Detroit,  etc.,  Co.,  64  Mich. 

De  Wald  v.   Kansas  City,  etc.,  Co.,  44  93,  8  Am.  St.  Rep.  804,  31  X.  W.  147. 

Kan.  586,  24  Pac.  1101;  Ohio,  etc.,  R.  «' 2  Elliott's  Gen.  P.,  §888.     Xote  to 

Co.    V.    Dunn,    138    Ind.    18,    36    X.    E.  People  v.   Peoples'  Exch.  2   L.     R.     A. 

702.  340. 


§  513]  PLEADING,  PRACTICE  AND  EVIDENCE.  487 

evidence,  it  will  be  presumed  that  the  company  has  waived  its  rij^hts 
under  the  motion,  and  any  exceptions  which  may  have  been  taken  to 
the  ruling  of  the  court  thereon,  unless  a  renewal  is  thereafter 
made.^-  The  plaintiff  cannot,  of  course,  successfully  move  the  court 
to  withdraw  the  case  from  the  jury  until  the  defendant  has  intro 
duced  its  evidence. ^^ 

»="  Polinjr  V.  Ohio  River  R.  Co.,  38  W.  209,    25    X.    E.    5G9 ;    Chica<io,   etc..    R. 

Va.  645,  24  L.  R.  A.  215,     18     S.     E.  Co.   v.   Van   Vleck,   143   111.   480,  32   X. 

782;    Northern,  etc.,  R.   Co.,  v.   Mares,  E.   2G2. 

123  U.  S.  710,  8  Snp.  Ct.  R.  321;  Jol-  «  Kingford  v.  Hood,  105  Mass.  405. 
iot.   etc..    R.   Co.   V.   Shields.      134     III. 


CHAPTER  XXI. 

MEASURE  OF  DAMAGES. 

§  514.    Scope  of  chapter. 

515.  Damages  defined. 

516.  General  rule — Hadley  v.  Baxendale. 

517.  Same  coritinued — not  only    actual    but    contemplative    dam- 

ages. 

518.  Actions  in  contract  and  in  tort — applicable  to  both. 

519.  Same  continued — character  of  damages  arising  from  each- 

kind  of  actions — amount  of  information. 

520.  Damages  recoverable — illustrative  cases. 

521.  Same  continued. 

522.  Same  continued. 

523.  Remote  damages. 

524.  Same  continued — speculative  damages. 

525.  Intervening  causes. 

526.  Benefit  of  contract — loss. 

527.  Same  continued. 

528.  Effect  of  special  circumstances. 

529.  How  communicated  to  the  company — information. 

530.  Same  continued — damages — remote  and  speculative. 

531.  Cipher  or  otherwise  unintelligible  messages. 

532.  Same  continued — case  in  point — reason  of  rule. 

533.  Contrary  view. 

534.  Same  continued— information  on  face  of  the  message. 

535.  When  message  discloses  its  importance. 

536.  Same  continued — need  not  be  informed  of  all  facts. 

537.  Question  for   jury. 

538.  Same  continued — extrinsic  facts  of  importance. 

539.  Rule  in  "mental  anguish  cases." 

540.  Same  continued — relationship  of  person  affected. 

541.  Same  continued — reason  of  rule — nearness  of  relationship. 
54.2.  Same  continued — interest  of  the  party  in  the  transaction. 
543.  Same  continued — deprived  of  the  addressee's  consolation. 

§  514.     Scope  of  chapter. 

It  is  our  purpose,  in  this  chapter,  to  discuss  at  some  length  the 
amount  of  damages  which  may  be  recovered  against  telegraph  com- 
panies for  breaches  of  their  contractual  or  public  duties,  and  the 
means  by  which  the  measurement  of  same  may  be  ascertained.  While 
commenting  upon  this  subject,  it  may  be  proper  to  state  at  the  outset 

(488) 


<^    516]  MEASURE    OF   DAMAGES.  4:89 

that  there  is  no  visible  distinction  between  the  nile  laid  down  and 
generally  followed  by  all  courts  and  text-writers  to  ascertain  these 
facts  in  cases  against  telegraph  companies,  and  that  in  actions  against 
other  corporations  and  private  persons;  for  this  reason  it  will  not 
be  necessary  to  discuss  extensively  the  common  and  accepted  rule 
whereby  the  measure  of  damages  is  ascertained  in  such  cases,  but 
simply  to  explain  and  illustrate  this  rule  as  it  is  applicable  particu- 
larly to  actions  against  telegraph  companies. 

§  515.     Damages  defined. 

The  term  ^'damages"  means  a  pecuniary  satisfaction  which  a 
party  may  recover  against  another,  in  an  action  wherein  it  is  alleged 
that  the  latter  has  infringed  upon  some  of  the  former's  legal  rights 
to  his  loss  or  injury.  So,  it  will  be  seen  that  there  must  be  an  in- 
fringement of  some  legal  right  before  an  action  can  be  maintained; 
and,  when  there  has  been  an  infringement  of  these  rights,  damages 
inevitably  result.  It  is  the  act  of  infringement  of  these  legal  rights, 
and  not  the  consequence  of  such  act,  which  makes  out  the  case,  yet 
it  is  necessary  to  know  the  consequences  in  order  to  determine  the 
amount  of  damages  to  be  recovered.  The  general  rule  is,  that  dam- 
ages are  in  the  nature  of  a  compensation;  so,  it  follows  from  this 
that  the  plaintiff  can  recover,  at  the  utmost,  only  such  damages  as 
are  coextensive  with  the  loss  or  injury  sustained.  If  it  cannot  be 
shown  that  there  is  an  injury  or  loss  sustained  by  the  act  of  infringe- 
ment, only  nominal  damages  can  be  recovered.  The  general  rule  is, 
that  a  party  cannot  recover  an  amount  of  damages  greater  than  that 
which  is  coextensive  with  his  loss;  yet,  this  is  no  reason  why  he 
should  always  be  thus  limited  in  his  recovery.^ 

§  516.     General  rule — Hadley  v.  Baxendale. 

It  being  presumed  that  the  plaintiff  has  been  injured  in  some 
of  his  rights,  and  that  he  is  entitled  to  be  compensated  in  damages 
therefor,  the  question  which  then  presents  itself  is.  By  w^hat  method 
can  the  amount  to  be  awarded  be  measured ;  or,  in  other  words,  by 
what  means  can  the  loss  or  injury  sustained  be  measured  or  deter- 

»Gray    on  Tel.  Co.,  §80. 


490  TELEGRAPH    A^^^D    TELEPHONE    COMPANIES.  [§"'1^ 

mined,  so  that  the  phiintiff  may  be  awarded  an  amount  in  damages 
equivalent  to,  or  coextensive  with,  the  loss  or  injury  as  a  compensa- 
tion therefor  ?  The  rule  laid  down  on  this  subject,  and  the  one  to 
be  followed  in  this  work,  is  so  generally  used  that  it  has  become  a 
proverb  in  law,  and  is  universally  recognized  and  accepted  as  a  fun- 
damental principle  in  the  law  of  damages  for  a  negligent  breach  of 
a  contract.  The  rule  upon  which  all  cases  of  this  nature  have  been 
based,  is  that  given  in  the  well-known  English  case  of  Hadley  v. 
Baxendale,  and  the  exact  statement  of  the  rule  therein  given  is  that 
"when  two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in  respect 
of  such  breach  of  contract  should  be  such  as  may  fairly  and  reasona- 
bly be  considered,  either  as  arising  naturally,  i.  e.,  according  to  the 
usual  course  of  things  from  such  breach  of  contract  itself,  or  such 
as  may  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties  at  the  time  they  made  the  contract,  as  the  probable  re- 
sult of  the  breach  of  it."  ^  As  can  be  seen,  this  rule  excludes  the 
consideration  of  all  damages  which  are  remote  or  speculative,  and 
only  such  as  are  the  proximate  consequence  of  the  injury  complained 
of  can  be  recovered.  The  rule  itself  is  a  definite  statement  of  what 
damages  the  breach  of  a  contract  is  the  proximate  cause,^  and  the 
accepted  maxim,  causas  proximo,  non  remota  spectatur,  excludes  the 
consideration  of  all  damages  which  are  not  the  proximate  result  of 
the  injury  alleged  to  have  been  committed. 

^Hadley  v.   Baxendale,  9   Exch.   341.  Co.,    16    Nev.    226;     Leonard    v.    New 

» Primrose  v.  West.  U.  Tel.  Co.,  154  York,  etc.,   Tel.    Co.,   41    N.   Y.    544,    1 

U.   S.   1;   Pacific  Postal  Tel.  Cable  Co.  Am.   Rep.     446;      Baldwin     v.     United 

V.  Fleischner   (C.  C.  A.),  60  Fed.  899;  States   Tel.   Co.,   45   N.   Y.   744,   6  Am. 

McBride    v.    Sunset   Tel.    Co.,    96    Fed.  Rep.  165;  Curtin  v.  West.  U.  Tel.  Co., 

81;    West.    U.    Tel.    Co.   v.    Henley,   23  14  Misc.      (N.   Y.)      459;      Bamesville 

Ind.  App.  14.  Compare  Squire  v.  West.  First  Nat.  Bank  v.  West.  U.  Tel.  Co., 

U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  30  Ohio  St.    565,    27    Am.    Rep.    485; 

157;   Postal  Tel.  Cable  Co.  v.  Barwise,  West.  U.    Tel.    Co.    v.    Edmondson,  91 

11   Colo.  App.  328;   Chapman  v.  West.  Tex.  206,  42     S.     W.     549;     Rowell  v. 

U.Tel.  Co.,  90   Ky.  265;    Smith   v.  West.  West.   U.   Tel.    Co.,   75   Tex.   26;    12   S. 

U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  W.  534;  West.  U.  Tel.  Co.  v.  Murray, 

126;   Bartlett  v.  West.  U.  Tel.  Co.,  62  29  Tex.  Civ.  App.  207;   68  S.  W.  449; 

Me.   209,   16   Am.   Rep.   437;    West.  U.  Fisher  v.  West.  U.  Tel.  Co.,  96  N.  W. 

Tel.  Co.  v.  Church,  90  N.  W.  878,  57  L.  345. 
R.  A.  909;   Mackay  v.  West.    U.    Tel. 


<^    517]  MEASURE  OF   DAMAGES.  491 

§  517.     Same  continued — not  only  actual  but  contemplative  dam- 
ages. 

It  is  not  so  difficult  to  understand  the  rule,  as  it  is  very  clear  that 
the  injured  party  should  recover  all  the  damages  caused  as  a  proxi- 
mate result  of  a  breach  of  a  contract,  but  it  is  its  application  to  the 
different  cases  which  puzzles  and  confuses  the  courts.''     The  rule  does 
not  become  much  more  comprehensive  when  it  further  states  that  the 
damages  must  tlow  directly  and  naturally  from  the  breach  and  that 
they  must  be  certain,  both  in  this  nature,  and  in  respect  to  the  cause 
from  which  they  proceed.    Under  this  rule,  only  such  damages  can  be 
recovered  as  may  fairly  be  supposed  to  have  entered  into  the  con- 
templation of  the  parties'  minds  at  the  time  of  making  the  contract, 
as  might  naturally  be  expected  to  arise  from  its  breach.     As  was  very 
ably  said  on  this  subject:     ''It  is  not  required  that  the  parties  must 
have  contemplated    the    actual    damages    which  are    to    be    allowed. 
But  the  damages  must  be  such  as  the  parties  may  fairly  be  supposed 
to  have  contemplated  when  they  made  the  contract,     ...     as  both 
parties  are  usually  equally  bound  to  know  and  be  informed  of  the 
facts  pertaining  to  the  execution  or  breach  of  a  contract  w^hich  they 
have  entered  into.      I  think  a  more  precise  statement  of  this  rule 
is,  that  a  party  is  liable  for  all  the  direct  damages  which  both  par- 
ties to  the  contract  would  have  contemplated   as  flowing  from   its 
breach,  if,  at  the  time  they  entered  into  it,  they  had  bestowed  proper 
attention  upon  the  subject    and  had    been    fully    informed    of    the 
facts."  ^    It  is  questionable  in  considering  this  subject — and  much 
more  so  is  it  the  case,  when  applying  the  mle  to  actions  against  tel- 
egi'aph  companies — as  to  the  extent  of  the  information  which  the 
company  may  have  of  the  nature  of  the  message,  and  the  effect  in 
negligently  transmitting  or  delivering  it.      It  is  very  often  the  case 
that  messages  are  couched  in  such  language  as  to  be  wholly  unintelli- 
gible to  the  company.     They  may  be  entirely  clear  and  easily  imder- 
stood,  both  by  the  sender  and  the  addressee,  but  at  the  same  time 

'  Leonard  v.  New  York,  etc.,  Tel.  Co.,  West.  U.  Tel.  Co.  v.  Church.  00  N.  W. 

41  N.  Y.  544;  Louisiana  Mut.  Ins.  Co.  878,    57   L.   R.   A.   909;    West.   U.   TeL 

V.  Tweed.  7  Wall.   (U.  S.)   44.  Co.  v.  Edmondson,  91  Tex.  206.  42  S. 

» Leonard    v.    New    York,    etc.,    Tel.  W.   549,  G6  Am.  St.  Rep.  873. 
Co.,   41    N.    Y.    544,    1    Am.   Rep.   440: 


492  TELEGRAPH  AND  TELEPHONE  COMPANIES.        [§  517 

the  company  or  the  operator  may  be  altogether  ignorant  of  the  pur- 
poses of  them.  So,  it  follows  from  the  general  rule  that,  in  order  to 
hold  these  companies  liable  for  damages  flowing  directly  and  proxi- 
mately from  the  breach  of  the  contract  of  sending,  they  must  have 
had  some  knowledge  of  the  nature  of  the  contract  and  the  damages 
which  may  be  supposed  to  have  entered  into  the  contemplation  of 
the  parties'  minds  at  the  time  the  contract  was  made,  as  may  have 
been  expected  to  be  the  result  of  its  breach.  The  reason  of  this  is 
obvious;  since,  if  the  nature  and  object  of  the  message  had  been 
known,  the  parties  might  have  specially  provided  for  the  breach  of 
the  contract  by  special  terms  as  to  damages  in  that  case.^ 

§  518.     Actions  in  contract  and  in  tort — applicable  to  both. 

While  actions  against  telegraph  companies  are  not  necessarily  or 
usually  brought  for  a  breach  of  their  contracts,  but  for  the  breach 
of  a  public  duty,  yet  the  latter,  as  said,  depends  somewhat  upon  the 
former,  since  it  would  not  have  occurred  had  it  not  been  that  the 
company  violated  its  contractual  duties.  The  general  rule,  however, 
for  ascertaining  the  measure  of  damages  is  applicable  in  both  kinds 
of  actions.  In  an  action  in  tort,  or  for  a  breach  of  a  public  duty^ 
the  damages  which  a  plaintiff  can  recover  are  in  satisfaction  of  the 
natural  and  proximate  consequence  of  the  defendant's  act;"  in  other 
words,  they  are  in  satisfaction  of  the  loss  that  might  reasonably  have 
been  expected  under  the  particular  circumstances  to  occur.  While 
this  rule  is  applicable  to  both  kinds  of  actions,  it  must  bo  under- 
stood, however,  that  the  character  or  the  nature  of  the  damages  may 
be  different  in  each.  For  instance,  punitive  damages  may  be  recov- 
ered in  an  action  of  tort,  where  it  w^as  committed  with  a  malicious 
motive,  but  it  cannot  bo  recovered  in  an  action  ex-contrachi.  So, 
also,  as  it  will  be  further  discussed  later,  it  seems  that  the  company 
need  not  have  had  the  same  information  of  the  nature  of  the  message 
and  the  probable  result  Avhich  would  arise  in  a  failure  to  transmit  or 
deliver  it,  as  it  would  in  an  action  brought  for  a  breach  of  its  con- 
tract, in  order  to  hold  it  liable  in  an  action  in  tort.  In  other  words, 
where  the  action  is  in  contract,  the  damages  are  restricted  to  a  more 

•Gray    on  Tel.  Co.,  §80.  'Sutherland    on    Dam.    21. 


<§,    519]  MEASURE  OF  DAMAGES.  493 

narrow  limit  than  in  actions  in  tort.  As  was  said:  "In  all  actions 
sounding  in  tort,  the  injured  party  is  not  limited  to  damages  which 
might  reasonably  have  been  within  the  contemplation  of  the  parties, 
but  recovery  may  be  had  for  all  the  injurious  results  which  flow 
therefrom,  by  ordinary,  natural  sequence,  without  the  interposition 
of  any  other  negligent  act  or  overpowering  force."  ^ 

§  519.     Same  continued — character  of  damages  arising  from  each 
— kind  of  actions — amount  of   information. 

The  amount  of  information  of  the  purpose  of  a  telegram,  neces- 
sary to  hold  these  companies  liable  in  actions  in  contract  and  in 
tort,  may  be  different,  or  equal,  yet  it  comes  from  different  sources, 
of  some  of  which  the  company  is  presumed  to  take  cognizance.  Hav- 
ing certain  public  duties  to  perform,  on  a  failure  to  properly 
discharge  them,  they  will  be  liable  to  anyone  injured  thereby. 
For  instance,  they  hold  themselves  out  as  being  ready  and  willing  to 
transmit  all  proper  messages  tendered  to  them ;  and,  as  people  sel- 
dom resort  to  these  companies  for  their  services  unless  the  matter 
is  of  much  importance  and  must  be  attended  to  quickly  it  is  pre- 
sumed that  they  will  transmit  the  message  in  the  exact  words  in 
which  it  was  delivered  to  them,  and  deliver  it  to  the  addressee  as 
promptly  and  speedily  as  it  is  possible  for  them  to  do.  This  is  a 
public  duty  which  they  owe  to  everyone  who  applies  to  them  for  ser- 
vices, and  one  which  they  must  take  daily  cognizance  of;  and,  when 
they  fail  to  discharge  this  duty,  it  is  supposed  that  they  contem- 
plated, at  the  time  of  accepting  this  service,  the  result  of  such  fail- 
ure. It  is  further  presumed  that  they  know — where  no  information 
is  given  them  to  the  contrary — that  all  messages  delivered  to  them 

^Mentzev   v.    West.    U.    Tel.    Co.,    93  Am.  St.  Rep.  12G;  :Milliken  v.  West.  V. 

Iowa  757,  62  N.  W.  1,  57  Am.  St.  Rep.  Tel.    Co.,    110   N.   Y.   403,    1    L.   R.    A. 

294;   We.st.  U.  Tel.  Co.  v.  Dubois,  128  281;   Young  v.  West.  U.  Tel.  Co.,  107 

111.  248,  21  N.  E.  4,   15  Am.  St.  Rep.  N.  C.  370,   11   S.  E.   1044,  22  Am.  St. 

109;    West.    U.    Tel.    Co.    v.    Allen.    60  Rep.   883,   9   L.   R.  A.   069n ;   West.  U. 

Miss.   549,   6   So.  461;    Ellis   v.  Ameri-  Tel.  Co.  v.  Adams,  75  Tex.  531,   12  S. 

can  Tel.  Co.,   13  Allen  226;    West.  U.  W.  857,  16  Am.  St.  Rep.  920,  6.  L.  R. 

Tel.  Co.  V.  Fenton,  52   Ind.    1;    Smith  A.  844. 
V.   West.    U.    Tel.    Co.,    83    Kv.    104,    4 


■i9i  TELEGRAPH  AXD  TELEP110^■E   COMPANIES.  [<§,    519 

are  of  importance,  and  that  great  loss  or  injury  may  be  the  result 
of  a  failure  on  their  part  to  properly  discharge  their  duty ;  and  that 
they,  therefore,  are  supposed  to  have  contemplated  all  the  damages 
flowing  naturally  and  directly  from  such  failure,  although  they  may 
not  have  had  any  actual  knowledge  of  what  damages  might  result 
at  the  time  of  accepting  the  message.  In  an  action  brought  against 
them  for  a  breach  of  their  contract,  they  are  not  held  liable  for  a 
breach  of  their  public  duty,  but  are  responsible  for  only  such  damages 
as  may  have  been  the  direct  and  proximate  result  of  the  breach  of 
contract,  and  such  as  may  have  been  contemplated  at  the  time  of 
making  the  contract.  The  information  of  the  importance  of  the  mes- 
sage and  the  probable  consequences  of  its  not  being  properly  sent 
and  delivered,  do  not  come,  as  in  actions  in  tort,  from  the  public 
position  which  they  occupy. 

§  520.     Damages  recoverable — illustrative  cases. 

Actual  damages,  sustained  by  reason  of  failures,  delays,  or  errors 
of  a  telegraph  company  in  transmitting  or  delivering  messages  in- 
trusted to  it,  may  be  recovered  by  the  sender  when  such  damages  are 
the  natural  and  proximate  result  of  the  company's  default,  and  may 
be  fairly  considered  to  have  been  in  the  contemplation  of  the  par- 
ties when  the  contract  was  made.^  In  a  certain  case  on  this  point, 
the  plaintiff,  in  reply  to  a  message  from  his  agent  informing  him 
of  the  failure  of  a  certain  fii-m,  and  inquiring  of  the  amount  due 
from  them  to  him,  sent  this  message :  ''Due,  1,800 ;  attach  if  you 
can  find  property.  Will  send  note  by  tomorrow's  stage."  The  mes- 
sage was  delayed  through  the  gToss  negligence  of  the  telegraph  com- 
pany, and  when  it  reached  its  destination  all  the  property  of  the 
firm  had  been  attached,  so  that  plaintiff's  claim  was  wholly  lost.  The 
loss  of  the  debt  was  held  to  be  the  natural  and  proximate  damages 

'Parks   V.   Alta   California   Tel.    Co..       v.  Harris,  19  Id.  347;  Hadley  v.  West. 


13  Cal.  422,  73  Am.  Dec.  589 
West.  U.  Tel.  Co.  V.  Graham,  1  Cal 
230,  9  Am.  Rep.  136;  West.  U.  Tel 
Co.  V.  Shotter,  71  Ga.  760;  Tyler  v 
West.  U.  Tel.  Co.,  60  111.  421,  14  Am 
Rep.   38;   W^est.  U.  Tel.   Co.  v.  Valen 


IL  Tel.  Co.,  115  Id.  191;  Sprague  v. 
West.  U.  Tel.  Co.,  6  Daly  200;  Mowry 
V.  West.  U.  Tel.  Co.,  51  Hun  126; 
United  States  Tel.  Co.  v.  Wenger,  55 
Pa.  St.  262,  93  Am.  Dec.  75;  Marr  v. 
West.  U.  Tel.  Co.,  85  Tenn.  520;  Pep- 


tine,  18  111.  App.  57 ;  West.  U.  Tel.  Co.,       per  v.  Tel.  Co.,  87   Id.  554. 


<^    521]  .MKASLKE   Oi-'   DAMACiKS.  405 

resulting  from  the  company's  failure  to  perform  its  contract.'"  The- 
same  principle  was  applied  in  a  case  where  the  plaintiff  delivered  to 
the  defendant's  agent  the  following  message  to  be  sent  to  his  broker 
at  New  York:  "Sell  one  hundred  (100)  Western  Union."  As 
delivered  to  Wrenn,  the  broker  in  Xew  York,  it  read:  "Sell  one 
thousand  (1,000)  Western  Union."  Wrenn  thereupon  sold  one  thou- 
sand shares  of  the  stock  of  the  Western  Union,  and  to  replace  the 
nine  hundred  shares  had  to  buy  on  a  rising  market.  The  differ- 
ence between  the  buying  and  selling  price  was  $729.75,  and  this 
amount  was  wholly  lost  to  the  plaintiff.  This  loss  was  held  to  be  the 
measure  of  his  damages. ^^  In  another  case  a  merchant  sent  through 
the  defendant  a  message  informing  the  plaintiff  that  he  would  sell 
him  apples  at  $1.75  per  barrel.  The  company  delivered  the  message 
stating  $1.55  as  the  price  per  barrel.  The  plaintiff  then  ordered 
the  apples,  and  had  to  pay  the  $1.75  to  have  them  delivered  to  him. 
The  difference  was  held  to  be  the  measure  of  his  damages.'-  A 
steamboat  company  sent  a  telegTam  to  the  plaintiff  offering  him  $150 
per  month  to  go  on  a  trip  as  a  steamboat  pilot,  and  for  the  season 
if  he  suited.  Through  the  negligence  of  the  company  the  message 
was  not  delivered  until  the  boat  had  sailed,  and  the  plaintiff  lost 
the  employment,  and  failed  to  get  other  employment  for  a  considera- 
ble time  thereafter;  the  loss  of  wages  thereby  sustained  was  held  to 
be  the  measure  of  his  damages.  ^^ 

§  521.     Same  continued. 

In  another  case,  the  plaintiff  lost  a  year's  employment  through  the 
defendant's  negligence  in  failing  to  seasonably  deliver  a  message,  and 
it  was  held  that  the  measure  of  his  damages  was  the  difference  be- 
tween what  ho  would  have  received  and  what  he  actually  made  dur- 
ing the  year;''*  but  if  the  employment,  lost  through  the  default  of 
the  company,  was  terminable  at  the    will  of   either   party,    nominal 

'"Parks  V.  Alta   California   Tol.   Co..  111.   248,    15   Am.    St.    Rep.    10!).   21    X. 

13    Cal.    422,    73    Am.    Dec.    589.      The  E.   4. 

same  was  held  in  the  ease  of  Baldwin  "  West.  U.  Tel.  Co.  v.  Fenton.  52  Ind. 

V.  American  Tel.  Co..  1  Daly  575.  1. 

"Tyler  v.  West.  U.  Tol.   Co..  (\0  HI.  "West.   U.  Tel.  Co.  v.  Valentine.   18 

421,  14  Am.  Rep.  38.  111.    App.    57. 

"West.  U.  Tel.  Co.   v.   Dii  Bois,   128 


496  TELEGKAPH  AND   TELEPHONE   COMPANIES.  [<^    521 

damages  only  could  be  recovered.  ^^  The  plaintiff,  in  another  case, 
had  sold  cattle  for  future  delivery,  at  the  option  of  the  purchaser. 
The  latter  sent  a  dispatch  informing  him  that  he  would  take  the  cat- 
tle on  the  morning  of  the  next  day.  It  was  the  custom  of  stock 
dealers  to  take  the  weight  of  cattle  at  early  daylight.  Through  the 
negligence  of  the  company  to  promptly  deliver  the  message,  the 
weighing  of  the  cattle  was  delayed,  whereby  their  weight  was  de- 
creased. It  was  held  that  the  defendant  was  liable  in  damages  for 
the  loss  of  the  weight  resulting  from  its  negligence.^''  The  plaintiff's 
correspondent  sent  him  this  message:  ''Ship  your  hogs  at  once." 
The  delivery  of  the  message  w^as  delayed  four  days  by  the  defend- 
ant's negligence.  It  was  held  that  the  plaintiff  could  recover  the 
difference  between  the  market  value  of  the  hogs  on  the  day  when 
they  would  have  been  delivered  had  the  message  been  promptly  de- 
livered, and  the  market  value  on  the  day  the  plaintiff  was  able  to  de- 
liver them  after  the  actual  receipt  of  the  message,  ^^  In  another  case, 
the  defendant  had  contracted  to  furnish  to  the  plaintiff,  the  Chicago 
market  report.  It  furnished  to  him  an  incorrect  report,  by  reason 
of  which  the  plaintiff  was  induced  to  purchase  a  quantity  of  grain 
to  fill  a  contract  for  future  delivery.  It  was  held  that  the  measure 
of  damages  was  the  difference  between  the  actual  purchase  price  and 
the  price  as  represented  by  the  report.  ^^  The  plaintiff  in  reply  to 
an  offer  of  a  cargo  of  corn,  sent  this  message:  "Ship  cargo  named 
at  ninety,  if  you  can  secure  freight  at  ten."  The  message  was  not 
delivered.  The  price  of  corn  and  freight  advanced  immediately  af- 
ter, and  the  plaintiffs  were  obliged  to  buy  at  the  advanced  rate.  It 
was  held  that  the  measure  of  damages  was  the  difference  between 
the  ninety  cents  named  and  the  sum  which  the  plaintiffs  were  or 
would  have  been  compelled  to  pay  at  the  same  place,  in  order  to  pur- 
chase the  like  quantity  and  quality  of  com,  upon  proof  that  the  corn 
could  have  been  shipped  by  the  sellers  at  that  rate,  had  the  telegram 
been  duly  received. ^^     The  same  principle  was  held  in  another  case, 

'« Merrill    v.    West.    U.   Tel.    Co.,   78  '« Turner  v.     Hawkeye     Tel.     Co.,  41 

Me.    97.  Iowa  458,  20  Am.   St.  Rep.  605. 

"Hadley   v.    West.    U.   Tel.   Co.,    115  '■'True  v.   International   Tel.   Co.,   CO 

Ind.  191.  Me.    9,    II    Am.    Rep.    156.     See,   also, 

"Manvill    v.    West.    U.    Tel.    Co.,   .37  Squire  v.  West.  U.  Tel.  Co.,  98  Mass. 

Iowa  214,   18  Am.  Rep.  8.  232.  93  Am.  Dec.  157. 


<§    523]  MEASUltK   OF   DAMAtiKS,  497 

wliorc  a  message  was  sent  to  the  plaintiff,  a  physician,  summoning 
him  to  go  on  a  professional  visit  to  a  patient.  I'hnjugh  the  defend- 
ant's negligence,  the  message  was  nut  delivered  until  it  was  too  late, 
and  the  call  was  revoked.  The  tt'stimony  showed  that  five  hundred 
dollars  was  a  reasonable  fee  for  the  services  expected  to  be  perfoi-med 
and  that  the  sender  of  the  message  was  solvent.  It  was  held  that  the 
measure  of  the  i)hiiiiti{r>  danuiges  was  the  difference  between  that 
sum  and  the  amount  he  earne(l  during  the  time  he  would  have  been 
absent  on  the  visit.-" 

§  522.     Same  continued. 

In  another  case,  the  plaintiff  sent,  through  the  defendant,  to  an 
attorney  in  BuffaJo,  this  message:  "Hold  my  case  till  Tuesday 
or  Thursday.  Please  reply."  The  company  never  delivered  the 
message,  and  the  i)laintiff,  receiving  no  reply,  concluded  that  a  post- 
ponement of  his  case  could  not  be  o*btained.  He  therefore  went  with 
his  counsel  to  Buffalo,  where  he  ascertained  that  the  case  had  been 
continued,  and  in  consequence  he  was  coni])elled  to  make  another  trip 
to  Buffalo.  It  was  hehl.  that  he  eould  recover  the  expenses  of  himself 
and  his  attorney  on  the  first  tri}),  an<l  also  the  fee  which  he  was 
obliged  to  pay  his  attorney  for  making  tliat  trip.-^  The  plaintiff's 
agent  at  Chicago  sent  to  the  plaintiffs  at  Oswego  this  message:  *'Send 
five  thousand  sacks  of  salt  immediately."'  The  company  delivered 
the  message  reading  'Vasks"  instead  of  "sacks."  The  plaintiff 
shipped  the  casks,  but  there  being  no  market  for  that  kind  of  salt  in 
Chicago  at  the  time,  it  sold  for  less  there  than  ir  was  selling  for  at 
Oswego.  It  was  held  that  the  measure  oi  damages  was  the  difference 
between  tlie  market  value  at  Oswego  and  at  Chicago,  together  with 
the  cost  of  irans])ortation  from  Osweiio  to  (  liieago.-" 

§  523.     Remote  damages. 

It  is  presumed  that  the  reader  has  had  cause  ere  this  to  study  and 
master,  to  a  certain  extent,  the  difference  between  proximate  and 

™  West.  I'.  Tel.  Co.  v.  LongwilK  Sup.  -'  Spragiie    v.    W  est.    I'.    Tel.    Co.,    (> 

Ct.  N.  M  llnly  200.  afl"g.   157   N.  Y.  590. 

"  Leonard    v.    New    York,   etc.,      Tel. 
T.  &  T.— 32  Co.,  41   N.  Y.  544;    1   Am.  Rep.   446. 


498  TELEGRAPH   AND  TELEPHONE   COMPANIES.  [<^    523 

remote  damages;  for  this  reason — and  for  the  further  reason  that 
the  subject  is,  in  a  sense,  foreign  to  the  scope  of  this  work — we  shall 
refrain  from  entering  into  it  at  any  great  length.  While  there  is  a 
distinction  betw^een  the  two  kinds  of  damages,  yet  in  many  instances 
the  distinction  is  so  slight  that  it  is  difficult  to  decide  on  which  side 
the  damages  belong.  The  damages  must  be  the  natural  and  direct 
result  of  the  breach,  or  such  as  flow  therefrom  by  ordinary  and  nat- 
ural sequence;  if  there  is  an  addition  of  any  other  negligent  act  or 
overpowering  force,  intervening  and  aiding  in  anywise  the  result,  the 
damages  will  be  too  remote  to  be  recovered.^^  The  law  does  not  hold 
these  companies  liable  for  every  possible  consequence  for  their  negli- 
gence, but  only  for  such  as  are  the  probable  and  natural  results  of 
their  wrongful  acts. 

§  524.     Same  continued — speculative  damages. 

It  must  be  borne  in  mind  that,  in  order  to  recover  damages  from 
telegraph  companies  for  their  wrongful  acts,  the  damages  must  be 
the  result  of  the  most  probable  and  natural  consequences  of  the  act, 
and  such  as  a  man  of  ordinary  care  and  foresight  would  have  con- 
templated at  the  time  the  contract  was  made,  as  a  probable  result  of 
a  breach  thereof,  and  not  such  as  depended  upon  the  happening  of 
some  possible  event.  The  company's  negligence  may  have  had  some 
casual  connection  with  the  damages  complained  of,  and  may  have 
exerted  a  material  influence  in  producing  the  final  result,  yet  thf 
company  cannot  be  held  liable  for  such  damages  when  subsequent  in- 

» Smith    V.    West.    U.    Tel.    Co.,    83  v.   Tel.   Co.,   30  Ohio  St.   555,   27  Am. 

Ky.  104,  4  Am.  St.  Rep.  126;  West.  U.  Rep.  485;    Reliance     Lumber     Co.     v. 

Tel.  Co.  V.  Hall,  124  U.  S.  444;  West.  West.  U.  Tel.  Co.,  58  Tex.  394,  44  Am. 

U.  Tel.  Co.  V.  Graham,   1  Colo.  230,  9  Rep.   620;    West.   U.   Tel.   Co.   v.   Mun- 

Am.  Rep.  136;  Hadley  v.  West.  U.Tel.  ford    (Tenn.),  3  Pickel,  190,  10  S.    W. 

Co.,   115   Ind.    191;    West.   U.   Tel.    Co.  318;   Hibbard  v.  West.  U.  Tel.  Co.,  33 

V.  Crall,  39  Kan.  580,    18    Pac.    719;  Wis.  558,  14  Am.  775;     Stevenson     v. 

Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  Montreal  Tel.  Co.,  16  U.  C.  Q.  B.  530; 

232,  93  Am.  Dec.   157;  Landsberger  v.  Kinghorne  v.  Montreal  Tel.  Co.,  18  Id. 

Magnetic  Tel.  Co.,  32  Barb.  530;   Me-  60;   McAllen  v.  West.  U.  Tel.  Co.,  70 

Call   V.    West.    U.    Tel.    Co.,   44    N.    Y.  Tex.  243,  7   S.  W.  715;   West.  U.  Tel. 

Sup.  Ct.  487,  7  Abb.  N.  C.   151 ;   Bald-  Co.  v.  Smith,  76  Tex.  253,  13  S.  W.  169, 

win  V.  United  States  Tel.  Co.,  60  N.  Y.  Bodkin  v.   West.  U.  Tel.   Co.,  31   Fed. 

198,  19  Am.  Rep.  154;  First  Nat.  Bank  134. 


<^    525]  MEASURE   OF   DAMAGES.  499 

tervening  causes  took  advantage  of  such  negligence,  and  ultimately 
brought  about  the  result  of  which  complaint  is  made.^'*  So,  if  the 
damages  are  uncertain  and  contingent  and  depending  upon  the  hap- 
pening of  some  possible  event ;  in  other  words,  one  cannot  recover 
for  speculative  or  uncertain  damages.  Thus,  where  a  complaint  is 
made  that  a  valuable  note  was  lost  by  the  failure  of  the  company  to 
deliver  a  telegram  to  the  plaintiif  announcing  the  serious  illness  of 
his  father — who  afterwards  died — requesting  him  to  come  to  his  bed- 
side, the  negligence  of  the  company  is  too  remote  from  the  possibility 
of  his  recovering  the  note  to  entitle  him  to  recover.  The  court  said, 
in  deciding  this  case:  ''Perhaps  his  father  w'ould  have  given  him 
the  note.  It  would  not,  however,  have  been  a  natural  consequence 
of  his  going  to  see  him.  He  might,  and  he  might  not,  have  done  so. 
Xo  such  loss  would  have  been  contemplated  by  the  parties  to  the 
sending  of  the  message,  had  their  minds  at  the  time  been  drawn  to 
the  contingency  of  its  not  being  delivered.  ...  As  well  might 
one  claim  from  a  railroad  company  the  amount  of  a  stake  in  a  race 
upon  the  ground  that  if  the  train  had  not  been  negligently  delayed, 
his  horse  would  have  arrived  in  time  and  won  the  race."  "^  So, 
also,  the  loss  to  plaintiff  of  customers,  resulting  from  his  failure  to 
perform  a  particular  contract,  his  failure  being  due  to  the  negligent 
alteration  of  a  message  by  the  defendant's  company,  is  wholly  spec- 
ulative and  conjectural,  and  cannot  be  considered  in  estimating  the 
damages.-^ 

§  525.     Intervening  causes. 

If  a  subsequent  intervening  cause  takes  advantage  of  the  negli- 
gence of  the  company,  which  may  have  had  a  casual  connection  with 
the  result,  and  ultimately  produces  the  damages  complained  of,  the 
company  will  not  be  liable.  In  other  words,  damages  cannot  be  re- 
covered which  are  the  result  of  the  consequences  of  secondary  and 

=*  Scheffer     v.     Washington,     etc.,  R.  "''  Chapman  v.  West.  U.  Tel.  Co.,  90 

Co.,  LOS  U.  S,  252;   Crain  v.  Petrie,  6  Ky.  265.     Compare  West.  U.  Tel.  Co. 

Hill    (N.   Y.)    522,   41    Am.   Dec.   765;  v.   Crall,   39  Kan.   580,   18   Pac.   719. 

Lowery  v.  West.  U.  Tel.  Co.,  60  N.  Y.  -« Fererro  v.  West.   U.  Tel.     Co.,     9 

198,    19    Am.     Rep.     154;     First    Nat.  App.  Cas.    (D.  C.)   455. 
Bank  v.  West.  U.  Tel.  Co.,  30  Ohio  St. 
555,  27  Am.  Rep.  485. 


5U0  TELEGRAPH   AND  TELEPHONE   COMPANIES,  [§    52") 

remote  eauses  indirectly  growing  out  of  a  breach  of  the  contract."' 
Thus,  where  the  loss  is  "occasioned  by  two  causes — the  shortcoming 
of  the  telegTaj)h  company  in  not  delivering  the  message  and  the  still 
shorter  coming  of  a  third  person  in  appropriating  to  himself  what 
belonged  to  another,"  the  company  will  not  be  liable.  In  this  case, 
a  telegTam  was  delivered  to  the  company  asking  a  remittance  of 
$500  from  the  addressee.  Through  the  negligence  of  the  company 
the  message  was  changed  so  as  to  read  $5,000,  and  this  amount  was 
sent  to  the  sendee  who,  on  receiving  this,  absconded;  it  was  held 
that  the  company  was  not  liable.  The  court,  said :  ''The  embezzle- 
ment could  not  reasonably  have  been  expected,  and  did  not  naturally 
flow  from  the  wrong  of  the  defendant.  The  cause  of  the  loss  was 
the  criminal  act  of  Brown,  conceived  and  executed  after  the  defend- 
ant had  ceased  to  have  any  relation  to  the  money.  The  plaintift's 
right  of  action  for  the  negligence  was  complete  before  the  money 
was  misappropriated  by  Brown ;  and  if  suit  had  then  been  brought, 
the  damages  would  not  have  been  measured  by  the  amount  of  money 
sent  by  the  plaintiff.  The  most  that  can  be  said  is,  that  by  the  neg- 
ligence of  the  company  an  opportunity  was  afforded  Brown  to  com- 
mit a  fraud  upon  the  plaintiff.  This  does  not,  within  the  cases, 
make  the  company  chargeable  with  the  loss  resulting  from  the  con- 
version." ^^  The  same  ruling  was  held  in  a  case  similar  to  the  above, 
where  the  plaintiff  sent  a  message  inquiring  as  to  the  financial  stand- 
ing of  certain  parties  who  had  presented  drafts  to  them  and  con- 
cluded: ''If  everything  is  alright,  you  need  not  dispatch.  If  not 
right,  answer  by  Saturday  evening  (13th)."  On  Monday  at  4:55  p. 
m.  a  reply  was  delivered  to  the  company  stating  "Parties  will  accept 
if  bill  of  lading  accompanies  draft.  Parties  stand  fair."  This  mes- 
sage was  never  transmitted  and  before  three  o'clock  on  the  same  day. 
the  plaintiff,  having  received  no  reply,  cashed  the  drafts,  which  were 
eventually  lost.  The  court  held  that  the  dishonesty  of  the  parties 
who  drew  the  draft,  and  not  the  negligence  of  the  company  was  the 
cause  of  the  loss.^^ 

"  Pegrani   v.   West.   U.   Tel.   Co..    100  '"  Lowery  v.  \\  est.  V.  Tel.  Co.,  GO  X. 

N.  C.  28,  6.  S.  E.  770,  6  Am.  St.  Rep.       V.   198.   10  Am.  Rep.   154. 
557.     See  note  24   for  other  cases.  '"  First  Nat.   Bank  v.   West.    U.   Tel. 

Co.,  30  Ohio  St.  55.5,  27  Am.  Rep.  485. 


(^    526]  MKASUKK   OF   DAMAGES,  oOl 

§  526.     Benefit  of  contract — loss. 

If  the  company  negligently  fails  to  transmit  or  deliver  a  message, 
relating  to  a  sale  or  purchase,  the  profit  or  benefit  expected  to  be 
made  is  too  remote  and  speculative  to  be  recovered  when  the  contract 
is  subject  to  Ix'  defeated  by  aiiDrlicr's  will.'''"  Thus,  in  an  action  to 
recover  damages  caused  by  the  comi)any's  delay  in  transmitting  and 
delivering  the  following  message:  ''Buy  ten  thousand  if  yni  think 
it  safe;"  the  dispatch  related  to  the  purchase  of  oil,  which,  on  the 
day  on  which  rhc  message  should  have  been  delivered,  was  selling  at 
$1.17  per  barrel.  On  the  next  day  the  oil  advanced  to  $1.35  per 
barrel,  and  tlie  ])erson  to  whom  the  message  was  sent  did  not  deem  it 
advisable  to  l)iiv,  nor  did  he  buy  at  any  subsequent  date.  There  was 
no  evidence  to  show  that  the  sender  of  the  message  intended  to  buy 
with  the  object  of  reselling  immediately  at  a  profit,  or  that  he  could 
have  sold  at  a  profit  at  any  future  time  if  he  had  bought.  It  was 
held  that  only  the  price  of  the  message  could  be  recovered.  The 
court  said,  in  deciding  this  case:  ''It  is  clear  that  in  point  of  fact 
the  plaintiff  has  not  suffered  any  actual  loss.  Xo  transaction  was 
in  fact  niiidc,  and  there  being  neither  a  purchase  nor  a  sale,  there 
was  no  actual  difference  between  the  sums  paid  and  the  sums  re- 
ceived in  consequence  of  it  which  could  be  set  down  in  a  profit  and 
loss  account.  All  that  can  be  said  to  have  been  lost  was  the  opportu- 
nity of  buying  on  November  !>tli,  and  making  a  profit  by  selling  on 
the  10th,  the  sale  on  that  day  being  i)urely  contingent,  without  any- 
thing in  the  case  to  show  that  it  was  even  probable  or  intended,  much 
le5s  that  it  would  certaiidy  have  taken  place."  ^^  In  another  case, 
the  suit  was  brought  for  the  failure  to  deliver  the  following  message : 
"Ship  oil  as  soon  as  possible,  at  very  best  rates  you  can."  Owing 
to  the  non-receipt  of  the  dispatch,  the  oil  was  not  sent,  and  the  plain- 
riff  claimed  tliat  lie  lost  great  gains  and  ])rofits  liy  the  delay  caused 
in  the  shipping  of  his  oil.  The  court  held  that  he  could  not  recover 
the  profits  which  he  might  have  made  on  the  oil,  because  they  could 
not  be  fairly  considered  as  having  been  in  the  contemplation  of  the 

=«  Johnson   v.   ^A'est.    U.   Tel.    Co.,   79  ==' West.   U.  Tel.   Co.   v.   Hall,   124   U. 

Miss.  58,  29  So.  787,  89  Am.   St.  Rep.       S.  444. 
584:    :\r<riill    v.    West   U.   Tel.   Co.,   78      • 
Me.   97. 


502  TELEGRAPH  AND  TELEPHONE   COMPAXIES.  ["§    5:20 

parties  to  the  contract  when  it  was  made.^-  While  he  could  not  re- 
cover profits  Avhich  might  have  been  made,  yet  he  may  recover,  in 
addition  to  the  price  of  the  message,  the  increased  price  of  freight 
which  he  was  subsequently  obliged  to  pay  for  transporting  the  oil, 
and  all  other  expenses  necessarily  incurred  by  reason  of  the  com- 
pany's failure  to  fulfill  its  contract."^  So,  it  was  held  that  the 
profits  which  the  plaintiff  might  have  made  if  he  had  received  the 
message  sent  to  him  in  time  to  have  met  the  sender  of  the  dispatcli 
at  the  railway  station,  and  rendered  to  him  the  services  which  he 
had  telegTaphed  him  to  come  and  perform,  could  not  be  recovered 
by  him  as  damages  in  an  action  against  the  defendant  for  its  failure 
to  deliver  the  message. ^^  ]S[either  can  damages  be  recovered  against 
a  company  for  the  loss  of  the  prize  purses  which  might  have  been 
won  had  a  certain  horse  been  present  at  a  race,  but  which  was  away 
therefrom  on  account  of  the  negligence  of  the  company  in  transmit- 
ting a  message  relating  thereto.^ ^ 

§  527.     Same  continued. 

In  another  case  the  plaintiff's  brokers  in  New  York,  who  had  pre- 
viously purchased  other  railroad  stock  for  him,  sent  him  a  telegram 
to  Eminence,  Kentucky,  where  he  then  lived,  informing  him  that 
they  had  bought  for  him  additional  railway  stock.  This  message 
was  never  delivered  and  he  was  left  in  ignorance  of  the  purchase.  On 
the  day  the  stock  was  bought  it  began  to  decline  and  continued  to 
do  so  until  the  day  which  was  known  as  "black  Friday,"  when  it 
was  the  greatest.  On  this  latter  date,  the  stock  had  so  far  declined 
that  its  value,  together  with  the  plaintiff's  deposit  with  his  brokers, 
did  not  equal  what  they  had  paid  for  it,  and  they  therefore  sold  it, 
leaving  him  in  debt  to  them,  later  a  reaction  occurred,  and  the  stock 
was  then  selling  for  more  than  plaintiff  had  paid  for  it.  He  brought 
his  action  against  the  company  for  damages  for  its  failure  to  deliver 
the  message,  saying  that  if  he  had  received  it  he  would  have  kept  his 
"margin"  good  and  thus  saved  all  his  stock.      But  it  was  held  that 

32  West.   U.   Tel.   Co.   v.     Graham,  1  =*  Clay  v.   West.   U.   Tel.  Co.,  81   Ga. 

Colo.  230,  9  Am.  Rep.  136.  285,  6  S.  E.  813. 

=»West.  U.  Tel.  Co.     v.     Graham,  1  ^'MVest.  U.  Tel.  Co.  v.  Crall,  39  Kan. 

Colo.  230,  9  Am.  Rep.  136.  580,    18  Pac.   719. 


<§    528]  MEASURE   OF  DAMAGES.  503 

he  could  only  recover  nominal  damages.  Holt,  J.,  who  delivered 
the  opinion  of  the  court,  said :  ''The  consequence  which  resulted  to 
the  appellant  was  not  the  ordinary  result  of  the  failure  to  deliver 
the  message  in  question,  and  hence  cannot  be  supposed  to  have  been 
in  contemplation  when  the  company  undertook  to  transmit  it.  If 
the  minds  of  the  contracting  parties  had  at  the  time  been  drawn  to 
the  contingency  of  a  failure  of  performance,  they  could  not  possibly, 
from  the  nature  of  the  dispatch,  have  contemplated  the  loss  of  which 
the  ai:)pellant  now  complains;  and  in  such  a  case,  the  company  is  only 
liable  for  nominal  damages  for  its  default."  "''  So,  also,  if  the  mes- 
sage is  in  regard  to  the  purchase  of  certain  gi'ain,  but  on  the  day 
following  that  on  which  the  message  should  have  been  delivered,  the 
price  advances,  and  after  this  it  fluctuates,  going  at  times  below  the 
price  of  the  grain  on  the  day  the  message  should  have  been  delivered, 
and  no  purchases  are  made  during  this  time,  the  plaintiff  can  only 
recover  nominal  damages.^"     Many  other  cn^o-i  might  be  given. 

§  528.     Effect  of  special  circumstances. 

It  must  ever  be  kept  in  mind,  while  considering  the  amount  of 
damages  to  be  recovered  from  a  telegraph  company  for  negligently 
transmitting  or  delivering  a  message,  that  only  such  can  be  recovered 
as  might  be  supposed  to  have  entered  into  the  contemplation  of  the 
parties'  minds  at  the  time  of  making  the  contract,  as  would  be  the 
most  probable  and  natural  result  of  such  negligence.  If  there  were 
special  circumstances  connected  with  the  sending  of  the  message 
which  would  be  the  cause  of  a  greater  loss  or  injury  in  case  it  was 
not  correctly  transmitted  and  promptly  delivered,  the  company  will 
not  be  liable  on  account  of  these  facts,  unless  it  should  have  notice 
of  such  at  the  time  the  contract  of  sending  was  made.^^      It  is  not 

^  Smith  V.  West.  U.  Tel.  Co.,  83  Ky.  ^^■est.    l'.   Tel.   Co.,   72   Mo.   App.    Ill; 

104,  4  Am.  St.  Rep.  12G.  West.   U.  Tel.  Co.  v.  Lively,   15  S.  W. 

"See  note  24.  (Tex.)    197;  West.  U.  Tel.  Co.  v.  J.  A. 

"West.  U.  Tel.  Co.  v.  Way,  S3  Ala.  Kemp  Grocer    Co.,    28    S.    W.     (Tex.) 

542,  4   So.   844;   West.   U.   fcl.   Co.  v.  905;  West.  U.  Tel.  Co.  v.  Parlin.  etc.. 

Cornwell,  2  Colo.  App.  491;   Evans  v.  Co.,   2o   S.    W.    (Tex.)      40;      Reliance 

West.   U.   Tel.   Co.,    102   Iowa   219,    17  Lumber   Co.   v.   West.   U.   Tel.   Co.,   58 

N    W.   219;    West.     U.     Tel.      Co.     v.  Tox.   394,  44  Am.  Rep.  620. 
Peaice.  34  So.    (Miss.)    ir)2;   Melson  v. 


504  TELEGRAPH   AND   TELEPHONE   COMPAXIES.  [_^    528 

supposed  that  in  every  possible  loss  the  company's  negligence  may 
be,  to  a  certain  extent,  the  cause;  but  it  is  only  such  results  as  a 
man  of  ordinary  understanding  might  have  contemplated  would  be 
the  natural  and  probable  result.  So,  if  the  special  circumstances 
connected  with  the  sending  of  the  message  were  such  as  would  not 
have  been  contemplated  by  the  company  as  being  a  probable  result 
of  its  negligence,  the  same  cannot  be  considered  in  the  awarding  of 
damages.  Thus,  where  plaintiff  sent  a  message  to  her  husband,  re- 
questing him  to  come  home  to  their  sick  child,  but  the  husband  failed 
to  reach  home  as  soon  as  he  would  have  done  in  case  the  message  had 
been  promptly  delivered  to  him,  the  plaintiff  cannot  recover  damages 
for  physical  and  mental  suffering  brought  about  by  reason  of  her 
pregnancy,  while  nursing  the  child,  when  the  company  had  no  know- 
ledge of  her  ]n-eg'nancy.^^  So,  where  the  plaintiff  received  a  mes- 
sage telling  him  that  his  trial  was  set  for  such  a  day,  but  the  com- 
pany negligently  changed  the  date  set  for  the  trial,  which  caused  the 
plaintiff  to  make  a  trip  to  the  place  at  which  the  trial  was  to  be  had 
on  the  date  stated  in  the  message,  it  was  held  that  he  could  not  re- 
cover damages  for  his  mill  being  necessarily  kept  idle  during  his 
absence,  when  the  company  had  no  information  that  this  would  be 
the  result.'*'^  He  may,  however,  be  allowed  his  necessary  expenses 
incurred  in  such  a  trip,  including  a  reasonable  attorney's  feC*^ 

§  529.     How  communicated  to  the  company — information. 

It  is  immaterial  as  to  how  the  special  circumstances  mav  be  com- 
municated to  the  company ;  if  it  was  sufficiently  informed  of  this 
fact  at  the  time  the  message  was  delivered,  it  will  be  liable  for  all 
damages  arising  directly  therefrom.  The  information  may  be  com- 
municated by  the  message  itself,  which  may  have  the  nature  of  the 
special  circumstances  on  its  face.^-  When  this  is  the  case,  there  is 
no  doubt  of  the  company's  liability.  And  the  information  may  be 
communicated  to  the  operator  at  the  time  tlie  message  is  delivered 

''"West.  U.  Tel.  Co.  V.  Pearcf,  34  So.  "  S|)ia<.ue    v.    Wost.    U.    Tel.    Co..    (i 

(Miss.)    152.  Daly    (X.  Y.)    200. 

*"  West.  U.  Tel.  Co.  V.  Short,  5.3  Aik.  --  McCall    v.    West.    U.    Tel.    Co.,    44 

434,   14  S.   W.   649.  X.   Y.   Super.  Ct.  487;     Thomijson     on 

Elect.  §§315,  316. 


§     530]  MKASLKK   <H'    DAMAGES.  505 

to  liim,  cither  by  the  sender  or  liis  agent.  If  it  can  be  shown  that 
the  company  or  its  operator  acquired  the  infonnation  at  the  time  th3 
message  was  (hlivcrcil  tor  transmission,  there  is  no  doubt  l)Ut  that 
this  is  as  good  information  as  if  the  message  itself  showed  the  cir- 
cumstances on  its  face.  Whik'  the  rule  is,  that  extrinsic  evidence 
cannot  Ix"  a(hnitted  for  the  purpose  of  <li;iii.i;ing  the  tenns  of  a  written 
contract,  yet  it  may  Ix)  admitted  for  the  purpose  of  showing  what  the 
intention  was.  Such  evidence  may  be  admitted  to  show  what  the 
parties  contemplated,  at  the  making  of  the  contract,  would  Ije  the 
supposed  probable  result  of  the  breach  of  such  contract. 

§  530.     Same  continued — damages — remote  and  speculative. 

It  does  not  matter  whether  there  were  special  circumstances  con- 
nected with  the  sending  of  the  message,  and  that  these  facts  were 
properly  and  sufficiently  communicated  to  the  company;  they  cannot 
control  the  measure  of  damages,  where  they  are  essentially  remote 
or  speculative  in  character.  Thus,  where  the  sender  loses  the  oppor- 
tunity to  conduct  a  profitable  speculation,  or  to  secure  contingent 
profits,  he  cannot  recover  for  these,  although  the  company  may  have 
been  informed  of  the  nature  and  character  of  the  message.  So,  also, 
where  the  basis  of  the  action  is  the  negligence  of  the  company  in 
failing  to  deliver  promptly  the  message  requesting  the  addressee  to 
meet  tlic  ])laintitl'  at  a  station,  damages  are  not  recoverable  for  fa- 
tigue and  exposure  incident  to  the  plaintiff's  being  compelled  to  walk 
from  the  station,  nor  for  impairment  of  health  resulting  therefrom  ;*^ 
neither  could  the  expenses  for  the  hiring  of  a  conveyance  be  recov- 
(n-e(l.-*-*  It  was  held,  however,  that  if  the  operator  knew  that  the 
sender  was  a  woman,  and  the  place  to  which  the  message  requested 
the  addressee  to  meet  her  was  a  flag  station,  the  company  is  put  on 
notice  that  a  failure  of  the  message  being  delivered  will  necessitate 
her  walking,  and  it  will  be  liable  therefor,  but  not  from  sickness  re- 
sulting from  the  fntiaiie  and  exposure  to  which  she  was  subjected.^"* 

« Stafford   v.    West.    V.    Tel.    Co.,    73  ^MVest.  U.   Tel.   Co.     v.     Smith.     76 

Fed.  273;  Yazoo,  etc.,  R.  Co.  v.  Foster,  Tex.  253. 

23  So.    (ISIiss.)    587;   West.  U.  Tel.  Co.  « West.  U.  Tel.  Co.  v.  Norton,  62  S. 

V.  Smith.  76  Tex.  253.   13  S.  W.  169.  W.    (Tex.)     lOSl.      See.   also.   West.    U. 


506 


TELEGRAPH   AXD  TELEPHONE  COMPANIES. 


r§  531 


§  531.     Cipher  or  otherwise  unintelligible  messages. 

From  ^vhat  has  been  said  in  the  preceding  section,  the  logical  con- 
clusion which  naturally  follows  is,  that,  where  a  telegraph  company 
receives  a  cipher  message,  or  one  otherwise  unintelligible,  and  the 
nature  and  the  purpose  of  which  are  only  known  by  the  sender  and 
the  addressee,  the  company  will  only  be  liable  for  nominal  damages ; 
or,  at  least,  the  price  paid  for  its  transmission,  where  it  is  negli- 
gently transmitted  or  delivered.^®  Some  courts  hold  differently  with 
respect  to  this  subject,*'^  but  the  greater  weight  of  authority,  both 
English  and  American,  considers  it  as  first  stated.^^  As  was  said 
in  discussing  the  general  rule  on  this  subject,  when  considering  spec- 
ial circumstances  connected  with  the  contract  of  sending  and  which 
was  not  know^n  by  the  contracting  parties:  "Had  the  special  cir- 
cumstances been  known,  the  parties  might  have  specially  provided  for 
the  breach  of  the  contract  by  special  terms  as  to  the  damages  in  that 
case  and  of  this    advantage    it   would    be    very    unjust    to    deprive 


Tel.  Co.  V.  Bryant,  17  Ind.  App.  70; 
West.  U.  Tel.  Co.  v.  Ragland,  61  S.  W. 
{Tex.)  421;  West.  U.  Tel.  Co.  v.  Karr, 
5  Tex.  Civ  App.  60,  24  S.  W.  302. 

«Candee  v.  West,  U.  Tel.  Co.,  34 
Wis.  471,  17  Am.  Rep.  452. 

*''  Dougherty  v.  American  U.  Tel. 
Co.,  75  Ala.  168,  51  Am.  Rep.  435; 
American  U.  Tel.  Co.  v.  Dougherty,  89 
Ala.  196;  West.  U.  Tel.  Co.  v.  Way, 
83  Ala.  542;  West.  U.  Tel.  Co.  v.  Fat- 
man,  73  Ga.  285,  54  Am.  Rep.  877; 
V/est.  U.  Tel.  Co.  v.  Blanchard,  68  Ga. 
299,  45  Am.  Rep.  480;  West.  U.  Tel. 
Co.  V.  Reynolds,  77  Va.  173,  46  Am. 
Rep.   715. 

«  Sanders  v.  Stuart,  I.  C.  P.  D.  326 
17  Moak  286,  24  W.  R.  949;  King 
home  V.  Montreal  Tel.  Co.,  18  N.  C.  Q 
B.  60;  Primrose  v.  West.  U.  Tel.  Co. 
154  U.  S.  1 ;  West.  U.  Tel.  Co.  v.  Hall 
124  U.  S.  444;  West.  U.  Tel.  Co.  v 
Coggin,  (C.  C.  A.)  68  Fed.  137;  Behm 
V.  West.  U.  Tel.  Co.,  8  Biss.  (U.  S.) 
131  ;   Hart   v.   West.   U.  Tel.      Co.,     66 


Cal.  579,  .56  Am.  Rep.  119;  Fererro  v. 
West.  U.  Tel.  Co.,  9  App.  Cas.  (D.  C.) 
455;  West.  U.  Tel.  Co.  v.  Wilson,  32 
Fla.  527,  14  So,  1,  37  Am.  St.  Rep. 
125,  22  L.  R.  A.  434;  Postal  Tel.  Co. 
V.  Lathrop,  131  111.  575,  23  N.  E.  583, 
VJ  Am.  St.  Rep.  55,  7  L.  R.  A.  474; 
West.  U.  Tel.  Co.  v.  Martin,  9  111. 
App.  587;  United  States  Tel.  Co.  v. 
Gildersleeve,  29  Md.  232,  96  Am.  Dec. 
519;  Beaupre  v.  Pacific,  etc.,  Tel.  Co.. 
21  Minn.  155;  Abies  v.  West.  U.  Tel. 
Co.,  37  Mo.  App.  554;  Hughes  v.  West. 
U.  Tel.  Co.,  79  Mo.  App.  133;  Melson 
V  West.  U.  Tel.  Co.,  72  Mo.  App.  Ill; 
Mackay  v.  West.  U.  Tel.  Co.,  16  Nev. 
222;  McCall  v.  West.  U.  Tel.  Co.,  44 
X.  Y.  Supr.  Ct.  487;  Com.  v.  West.  U. 
Tel.  Co.,  100  N.  Car.  300,  6  Am.  St. 
Rep.  590,  6  S.  E.  731;  West.  U.  Tel. 
Co.  V.  Griswold,  37  Ohio  St.  301,  41 
Am.  Rep.-  500;  Ferguson  v.  Anglo- 
American  Tel.  Co.,  178  Pa.  St.  377,  35 
Atl.  979,  35  L.  R.  A.  554,  56  Am.  St. 
Rep.  770;  Daniel  v.  West.  U.  Tel.  Co., 


§    532]  MEASURE   OF  DAMAGES.  507 

them."  ■'^  The  unintelligible  messages  may  and  generally  do  relate 
to  special  circumstances  not  known  by  these  companies,  and  to  hold 
them  liable  for  damages  resulting  from  negligence  in  sending,  and 
that  which  may  not  have  entered  into  the  contemplation  of  their 
minds  at  the  time  of  accepting  the  message  as  being  the  natural  and 
proximate  result  of  such  negligence,  would  be  inconsistent  with  the 
spirit  of  the  general  rule.  Some  courts  have  held  that  this  rule  is 
analogous  to,  and  derives  its  support  from,  the  principle  of  the  law 
of  common  carriers,  which  exempts  them  from  responsibility  where 
the  owner  conceals  his  goods  so  the  nature,  quantity  and  price  of 
them  are  unknown  to  the  carrier.^*^  This  is  doubtless  true,  in  a 
sense,  but  Ave  think  the  fundamental  principles  of  this  rule,  as  well  as 
that  of  carriers,  are  founded  upon  the  reasons  given  in  the  cases 
which  are  universally  recognized  as  authority  on  this  subject.^  ^  The 
only  diflBculty  in  these  cases  is  in  ascertaining  the  fact  as  to  whether 
the  company  was  informed  of  the  nature  and  purpose  of  the  message ; 
and  this,  we  shall  now  discuss. 

§  532.     Same  continued — case  in  point — reason  of  rule. 

A  reason  for  this  rule  was  given  by  Chief  Justice  Dixon,  from 
which  we  quote :  "It  cannot  be  said  or  assumed  that  any  amount  of 
damages  or  any  pecuniary  loss  or  injury  will  naturally  ensue  or  be 
suffered,  according  to  the  usual  course  of  things,  from  the  failure  to 
transmit  a  message,  the  meaning  and  import  of  which  are  wholly  un- 
known to  the  operator.  The  operator  who  receives,  and  who  repre- 
sents the  company,  and  may  for  this  purpose  be  said  to  be  the  other 
party  to  the  contract,  cannot  be  supposed  to  look  upon  such  a  mes- 
sage as  one  pertaining  to  transactions  of  pecuniary  value  and  impor- 
tance, and  in  respect  to  which  pecuniary  loss  or  damages  will  natur- 
ally arise  in  case  of  his  failure  or  omission  to  send  it.  It  may  be 
a  mere  item  of  news  or  some  other  communication  of  trifling  and 
unimportant  character.  Ignorant  of  its  real  nature  and  importance. 
it  cannot  be  said  to  have  been  in  his  contemplation,  at  the  time  of 

'^il   Tox.  452,  48  Am.  Rep.  305;  McAl-  "  Hadley  v.  Baxendale.  9  Exch.  341. 

len  V.  West.  U.  Tel.  Co.,  70  Tex.  243,  ^^  Caiulee     v.     West.   U.  Tel.  Co..  34 

7  S.  W.  715;  Candee  v.  West.  U.  Tel.  Wis.  471,  17  Am.  Rep.  452. 

Co.,  34  Wis.  471,  17  Am.  Rep.  452.  "  Hadley  v.   Baxciidale,  9   Exch.  341. 


508  TELEGRAPH  AXD   TELEPIIOXE   COMPA>lES.  [§    532 

making  tlic  contract,  that  any  j)ai*ticular  damage  or  injury  would  be 
the  probable  result  of  a  breach  of  the  contract  on  his  part."  ^^  It 
is  true  that  these  companies  must  exercise  as  much  care  and  diligence 
in  the  transmission  of  unintelligible  messages  as  those  which  show 
the  importance  and  urgency  on  their  face,  although  they  would  know 
in  one  and  not  in  the  other  the  result  of  their  dereliction  and  care- 
lessness. It  is  one  of  the  duties  of  these  companies  to  refrain  from 
divulging  the  contents  of  messages  entrusted  to  their  care ;  this  is 
provided  for  by  statutes  in  some  states,  and  the  operator  wdio  violates 
such  may  be  subjected  to  a  penalty.  Therefore,  if  the  company  may 
be  held  liable  for  all  damages  resulting  proximately  and  naturally 
from  its  negligence,  when  the  message  shows  its  importance  and  pur- 
pose on  its  face,  whereby  the  company  is  informed  of  the  probable 
results  of  its  negligence ;  and  if  the  secrecy  of  one  is  as  safe  as  the 
other,  it  should  be  the  duty  of  the  sender  to  inform  the  company, 
in  some  way,  of  the  importance  of  the  message  in  order  to  hold  it 
liable  for  damages  to  which  it  would  not  otherwise  be  subjected  in 
case  the  message  was  unintelligible. 

§  533.     Contrary  view. 

There  are  some  very  j)lausible  reasons  given  by  some  courts  for 
holding  a  contrary  view  on  this  subject.  These  courts  hold  that  the 
company  is  liable  for  all  damages  resulting  proximately  and  directly 
from  the  company's  failure  to  transmit  correctlj^  or  deliver  promptly 
all  messages  delivered  to  it,  whether  thev  be  intelligible  or  unintelli- 
gible to  the  company  at  the  time  they  are  accepted. ^^  The  ground 
on  which  they  base  their  views  is,  that  it  is  the  duty  of  these  com- 
panies to  exercise  as  much  care  and  diligence  in  the  transmission  of 
these  kinds  of  messages  as  one  M'hose  importance  is  shown  on  its  face, 
or  where  the  information  of  this  fact  is  otherwise  mven  to  them.  x\n- 
other  reason  entertained  is,  that  most  messages  of  gTeat  importance 
are  w^ritten  in  cipher  or  otherwise  unintelligible  language.  In  other 
words,  a  large  part  of  all  messages  of  a  commercial  or  business  nature 
are  sent  in  cipher,  known  only  to  the  sender  and  addressee ;  and  this 
fact  suggests  to  the  company  that  the  damages  resulting  from   its 

^=Candee  v.    West.    U.    Tel.    Co.,    34  "See  note  47. 

Wis.  471,  17  Am.  Rep.  452. 


<§    534]  MEASUEE  OF  DAMAGES.  501> 

nogligciicc  will  lie  usually  <iroat,  and  that  all  these  are  supposed  to 
have  eiiUrcd  iiil(j  the  contemplation  «>f  the  conipatiy's  mind  at  the 
time  the  message  was  accepted,  as  wuuld  most  probably  Ix-  the  nat- 
ural and  direct  result  of  its  carelessness  or  negligence.  While  these 
reasons  appear  at  first  sight  as  unanswerable,  yet  we  feel  that  they 
are  unsound. 

§  534.     Same  continued — information  on  face  of  the  message. 

As  has  been  said,  a  great  many  messages  of  a  business  or  commer- 
cial nature  are  sent  in  cipher,  or  language  which  is  otherwise  luiin- 
telligible  to  the  company  or  its  operator,  and  the  only  information 
the  o])erator  has  of  the  importance  and  urgency  of  the  message  is 
such  as  is  gathered  from  its  face  and  the  company  should  only  be  lia- 
ble for  nominal  damages  in  negligently  transmitting  or  delivering 
it.^'*  Thus,  the  jdaintitf,  who  had  been  offered  a  certain  price  for 
his  interest  in  a  certain  oil  well,  telegraphed  his  agent  this  message: 
'"Telegraph  me  at  Rochester  what  that  well  is  doing."  This  was  not 
delivered  for  several  days  after  it  was  sent.  In  the  meantime,  plain- 
tilf  went  to  Rochester,  and  not  receiving  any  reply,  sold  his  interest 
in  the  well  for  much  less  than  it  was  worth.  It  was  held  that  nominal 
damages  could  only  be  recovered.  In  delivering  the  opinion  in  this 
case  the  court  said  :  "For  all  the  purposes  for  which  the  plaintiif  de- 
sired the  information,  the  message  might  as  well  have  been  in  a  ci- 
pher or  in  an  unknown  tongue.  It  indicated  nothing  to  put  the  de- 
fendant upon  the  alert,  or  from  which  it  could  be  inferred  that  any 
special  or  pecuniary  loss  would  ensue  from  a  non-delivery  of  it."  ^^ 
In  another  case,  the  plaintiff's  contracte«l  with  some  parties  in  San 
Francisco  to  furnish  tiiree  hundred  Colt's  revolvers.  They  were  to 
receive  a  commission  for  their  services  and  were  bound  to  pay  a  pen- 
alty if  tluy  failed  to  perform  their  part  of  the  agreement.  They 
sent  by  the  Pacific  Mail  Company  to  the  agents  at  the  place,  $1,000 
to  be  used  in  their  purchase,  and  sent  the  following  message  over 
the  defendant's  line  to  said  agents:  "Get  one  thousand  dollars  of 
the  ]\lail  ('niiipany."     This  message  was,  through  the  company's  neg- 

"See  note   48.  "Baldwin  v.   Inited  States  Tel.  Co., 

4..  X.  Y.  744.  t>  Am.  Rep.   1G5. 


510  TELEGRAPH  AKD   TELEPHONE   COMPANIES.  [§    534 

ligence  so  long  delayed  that  the  contract  could  not  be  performed.  It 
was  held  that  the  message  did  not  show  on  its  face  its  importance, 
and  the  plaintiff  could  only  recover  nominal  damages.^^ 

§  535.     When  message  discloses  its  importance. 

Although  a  message  may  be  couched  in  unusual,  or  trade  language, 
if  it  is  sufficiently  plain  to  indicate  that  it  relates  to  business  trans- 
action of  much  importance,  and  that  loss  will  probably  result  unless 
it  is  promptly  transmitted  and  delivered,  recovery  will  not  be  limited 
to  nominal  damages.  Thus,  it  has  been  held  that  the  following  mes- 
sages contain  sufficient  information  on  their  face  to  indicate  their  im- 
portance :  "Cover  two  hundred  September,  one  hundred  August."  ^"^ 
This  meant  sell  two  hundred  bales  of  cotton  delivered  in  September 
and  one  hundred  delivered  in  August.  "Ten  cars  new  two  white  Au- 
gust shipment,  fifty-six  half."  °^  This  was  an  offer  to  sell  two  cars 
of  ]^o.  2  white  oats,  to  be  shipped  in  August,  at  fifty-six  and  one  half 
cents  per  bushel.  "Sell  one  hundred  Western  Union.  Answer 
price."^^  "Want  your  cattle  in  the  morning;  meet  me  at  pasture."^*^ 
It  was  held  that  this  was  sufficient  to  authorize  the  inference  that  a 
delay  until  the  day  following  would  result  in  confusion,  and  loss. 
"Ship  your  hogs  at  once."  The  court  said:  "The  obvious  reason  of 
this  is  evidence  on  its  face.  It  clearly  imports  that  to  meet  a  good 
market  for  hogs  there  must  be  shipment  at  once,  and  that  by  a  delay 
a  good  market  will  be  lost.  It  is  equivalent  to  saying,  if  you  ship  at 
once  you  will  obtain  gains  of  the  purchase  and  sale  of  your  hogs.  If 
you  delay,  these  gains  will  be  lost  by  the  market  price  declining.  It 
is  most  obvious,  therefore,  that  the  parties  contemplated  this  very 
thing."^^  "Ship  cargo  named  at  90,  if  you  can  secure  freight  at  10." 
This  was  sufficient  to  inform  the  operator  that  this  was  an  accep- 
tance of  an  offer  to  sell  a  cargo  at  the  price  named,  if  freight  could 

»•  Landsberger  v.   Mafrnetic   Tel.    Co.,  ^»  Tyler  v.  West.  U.  Tel.  Co.,  60  111. 

32  Barb.  530.  421,  14  Am.  Rep.  38. 

"West.    U.    Tel.    Co.    v.    Blanchard,  ""Hadley   v.    West.   U.   Tel.    Co.,    116 

68  Ga.  299,  45  Am.  Eep.  480.  Ir.d.   191. 

=«West.  U.  Tel.  Co.  v.  Harris,  19  111.  "  Manville   v.   West.   U.   Tel.   Co.,   37 

App.  347.  Iowa  214,   18  Am.   Rep.   8. 


<^    536]  MEASURE   OF  DA^klAGES.  511 

be  procured  at  ten  cents."-  "If  we  have  and  Old  Sutlu-rland  on  hand, 
sell  same  before  board.  Buy  five  Hudson  at  board.""^  "Will  takf 
two  cars  sixteens.  Ship  soon  as  convenient  via  West  Shore."  This 
was  sent  after  the  sender  had  received  on  the  same  day,  through  the 
same  office  a  dispatch  from  Armour  &  Company,  Chicago,  containing 
these  words:  "Pickled  hams,  sixteens,  nine  and  a  half."  In  deliv- 
ering the  opinion  the  court,  said:  "We  think  the  contents  of  this 
message  were  such  as  to  indicate  clearly  to  defendant  that  it  was 
important,  that  a  contract  for  the  purchase  of  two  carloads  of  hams 
was  being  made  by  the  parties,  and  that  a  failure  to  send  the  mes- 
sage must  result  in  such  loss  to  the  parties  as  would  naturally  follow 
from  a  failure  to  complete  such  contract."*^"*  "Buy  fifty  ISTorth  West- 
ern— fifty  Prairie  du  Chein,  limit  forty-five."  This  contained  suffi- 
cient information  on  its  face."^  "Car  cribs  six  sixty,  c.  a.  f.,  prompt." 
This  was  sent  in  reply  to  the  following :  Quote  cribs  loose,  and  strips 
packed."  In  the  meat  trade,  "cribs"  means  clear  ribs,  and  "c.  a.  f." 
means  cost  and  freight.*''^  "You  had  better  come  and  attend  to  your 
claim  at  once.""^  "Send  a  bay  horse  to-day,  Mack  loads  to-night." 
Mack  was  a  well-known  horsebuyer  who  was  in  the  habit  of  shipping 
horses  from  the  vicinity  of  the  place  from  which  the  message  was 
sent.®®  The  following  was  held  against  the  great  weight  of  modern 
authority  as  being  insufficient:  "Will  take  two  hundred  extra  mess, 
price  named."  This  was  in  reply  to  a  message  containing  the  fol- 
lowing: "Extra  mess,  $28.75."«» 

§  536.     Same  continued — need  not  be  informed  of  all  facts. 

It  is  not  necessary  that  the  company  be  informed  of  all  the  facts 
and  circimistances  pertaining  to  the  business  transaction  about  which 
the  message  is  sent,  in  order  for  this  rule  to  hold  good.     It  is  enough 

"True   V.   International   Tel.   Co.,   60  Tenn.  554,  4  L.  R.  A.  6G0,  10  Am.  St. 

Me.  9,  11  Am.  Rep.  156.  Rep.  699. 

"Rittenhouse     v  .Independent     Line  ""West.   U.   Tel.   Co.  v.    Sheffield,   71 

of  Tel.,  44  N.  Y.  263,  4  Am.  Rep.  673.  Tex.  570,  10  S.  W.  752. 

'":\rowry  V.  West.     U.  Tel.     Co.,     51  «« Thompson  v.  West.  U.  Tel.  Co.,  64 

Hun  126.  Wis.  531. 

"  L'nited   States  Tel.   Co.   v.  Wenger,  «» Beaupre    v.    Pacific,   etc.,    Tel.    Co., 

55  Pa.  St.  262,  93  Am.  Dec.  751.  21  Minn.  155. 

«>  Pepper  v.  West.  U.  Tel.     Co.,     87 


512  TELEGKAPll   AXD   TELEPHONE   COMPANIES.  [§    536 

if  there  are  sufficient  facts  disclosed  by  the  face  of  the  message  to  in- 
dicate its  importance,  and  the  probable  consequences  of  its  failure  in 
not  being  received  by  the  addressee  as  delivered  to  the  company.^"  A 
message  containing  these  "words :  ''Fifty-five  cents,  usual  terms,  quick 
acceptance,"'  indicates  that  it  relates  to  a  business  transaction  and  to 
a  contemplated  trade  and  puts  the  comapny  on  notice  that  it  is  of  im- 
portance.'^ Some  courts  have  held  that  a  message  is  sufficiently 
plain  if  its  language  is  such  as  to  put  the  company  on  inquiry.^-  We 
hardly  think  that  it  is  the  duty  of  these  companies  to  exert  them- 
selves to  make  any  extensive  inquiry  of  the  nature  and  purpose  of  a 
message,  when  the  language  of  such  puts  them  on  inquiry.  However, 
if  the  facts  could  be  ascertained  by  a  little  inconvenience  on  their 
part,  it  would  be,  in  our  opinion,  their  duty  to  make  such  inquiry. 
The  nature  of  the  business  of  these  companies  is  to  expedite  matters 
in  the  gTcatest  possible  haste ;  so,  to  require  them  to  ascertain  facts 
concerning  the  nature  and  purposes  of  messages  delivered,  would  nec- 
essarily destroy  the  effects  of  such  a  business. 

§  537.     Question  for  jury. 

There  can  be  no  tixcd  rule  laid  down  by  which  a  court  may  be  guid- 
in  detennining  whether  a  message  contains  such  Avords  as  will  be  suffi- 
ciently plain  to  indicate  its  importance.  As  was  said,  some  courts 
hold  that  the  company  will  not  be  limited  to  nominal  damages  for 
negligently  transmitting  or  delivering  a  message,  and  that  too,  wheth- 
er the  company  did  or  did  not  know  the  purpose  of  the  message ;  but 
the  weight  of  authority  is  undouljtedly  to  the  contrary.  Where  there 
is  doubt  as  to  whether  the  words  contained  in  the  message  were  suffi- 
cient to  indicate  its  importance,  and  whether  this  is  true  with  re- 
spect to  the  operator,  or  whether  the  latter  was  made  more  certain  of 

■»  Evans    v.    West.    U.    Tel.    Co.,    102  Am.   Rep.   8;   Garrett  v.  West.  U.  Tel. 

Iowa  219,  71   N.  W.  219;   Harkness  v.  Co.,  8.3  Iowa  2.57;  McPeek  v.  West.  U. 

West.  U.  Tel.  Co.,  73  Iowa,  190,  5  Am.  Tel.  Co.,  107  Iowa  356,  70  Am.  St.  Rep. 

St.  Rep.  672;   Pepper  v.  West.  U.  Tel.  20.5,  43  L.  R.  A.  214,  78  N.  W.  63. 

Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  "  Fererro  v.   West.   U.   Tel.      Co..     9 

St.  Rep.  699,  4  L.  R.  A.  660;  Gulf,  etc..  App.    Cas.    (D.    C.)    455. 

R.  Co.  V.  Loonie,  82  Tex.  323,  18  S.  W.  "  West.  U.  Tel.  Co.  v.     Carter.       20 

221,  27  Am.  St.  Rep.  891;   Manville  v.  S.     W.      (Tex.)      834;      Thompson    on 

Wfst.    r.    Tel.    Co.,    37    Iowa    214,    18  Elect.    §  3(i5. 


^    538]  MEASUEE  OF  DAMAGES.  513 

its  importance  by  extrinsic  facts,  are  questions  for  the  jury.^^  The 
question  as  to  the  operator's  having  transmitted  similar  messages  of 
whose  importance  he  was  infonned,  or  the  frequency  with  which  fam- 
iliar words  are  used,  their  familiarity  in  trade  circles,  and  whether 
the  same  have  been  communicated  to  the  company,  are  matters  to  be 
<'Onsidered  iji  detcrniining  their  sufficiency.  As  -said,  no  rule  can  be 
laid  down  for  determining  this  question,  but  all  facts  and  circumstan- 
ces connected  with  the  particular  message  should  be  considered.  If 
the  message  is  a  summons  for  a  physician,  and  the  operator  knows 
him  to  be  such,  it  would  not  be  a  question  for  the  jviry,  since  it  is  suf- 
Hciently  plain  on  its  face  to  indicate  its  importance.'^'*  When  the 
message  announced  the  illness  of  some  one,  where  the  operator  knew 
that  the  addressee  was  related  to  the  person  announced  as  ill;"^*^  or 
where  the  message  directed  the  sender's  attorney  to  attach  property  of 
a  failing  debtor;  or  advising  the  plaintiff  of  the  fact  that  a  debtor  is 
about  to  fail  or  some  similar  facts'*"  the  message,  in  cither  case,  will 
be  sufficiently  plain  to  indicate  its  importance,  and  the  company  will 
not  be  limited  to  nominal  damages  for  its  failure  to  transmit  or  de- 
liver correctly  and  promptly.  All  damages  which  would  ordinarily  re- 
sult from  the  lack  of  medical  attention,  or  from  mental  suffering,  or 
for  the  loss  of  n  debt,  may  1)C  recovered. 

§  538.     Same  continued — extrinsic  facts  of  importance. 

When'  the  message  docs  not  contain  words  sufficiently  plain  to  in- 
dicate its  importance,  but  there  arc  extrinsic  facts  acquired  by  the 
company  at  the  time  the  contract  of  sending  is  made  which  apprises  it 
of  the  importance  of  the  message,  the  company  will  be  liable  for  a 

'» Cannon   v.   West.   U.  Tel.   Co.,   100  Pearce,   .34    So.    (Miss.)     152;    Moaders 

X.    Gar.   300,  6   S.  E.   731,  6  Am.   St.  v.   West.  U.  Tel.  Co.,   132  N.  Car.  40. 

Rep.  590;  Candoe  v.  West.  U.  Tel.  Co.,  43  S.  E.  512;  We^t.     U.     Tel.     Co.     v. 

34  Wis.  471,   17  Am.  Rep.  452;  Lands-  Wilson,  51  S.  W.   (Tex.)   521;  West.  V. 

berger   v.   Magnetic  Tel.   Co.,   32   Barb.  Tel.    Co.    v.    T.inii,    87    Tex.    7.    47    Am. 

(N.    Y.)    530;    Postal   Tel.    Cable   etc.,  St.  Rep.  58. 

Co.  V.  Lathrop,  131  111.  575,  7  L.  R.  A.  ■""  Pacific  Postal   Tel.   Cable     Co.     v. 

471,  19  Am.  St.  Rep.  55,  23  N.  E.  583.  Fleischur    (C.   C.  A.)    60   Fed.   899,   55 

'*West.  U.  Tel.  Co.  v.  Church,  90  N".  Fed.  738;   Bierhaus  v.  West.     V.     Tol. 

W.  878,  57  L.  R.  A.  905.  Co.,  8  Ind.  App.  246;  Martin  v.  We^t. 

•MVest.    U.   Tel.    Co.   v.    Eakridge.    7  U.  Tel.  Co..  1  Tex.  Civ,  App.  143. 
Fiid.   App.  208;   West.  U.     Tel.  Co.     v. 
T.  &  T.— 33 


514  TELEGRAPH  AND  TELEPHONE   COMPANIES.  \_^    538 

failure  to  send  or  deliver  the  message  accurately  and  promptly,  just 
the  same  as  if  it  showed  this  fact  on  its  face/'^  It  is  claimed  hy 
some  authority/*  that  the  extrinsic  facts  must  have  been 
acquired  from  the  sender  at  the  time  the  contract  was  made 
or  prior  thereto,  if  they  were  acquired  after  the  making  of  the 
contract,  they  could  not  be  considered  as  part  of  the  contract.  We 
are  inclined  to  think  it  is  necessary  that  they  be  known  at  the  time 
of  making  the  contract,  else  the  company  could  not  have  contemplat- 
ed the  result  of  a  failure  to  properly  discharge  its  duty  with  respect 
to  the  message.  The  rule  is  that  the  resulting  damages  of  the  com- 
pany's negligence  must  have  entered  into  the  contemplation  of  the 
parties'  minds  at  the  time  the  contract  was  made.  We  do  not,  how- 
ever, think  that  the  company  is  precluded  from  deriving  the  informa- 
tion from  sources  other  than  from  the  sender,  but  in  determining  the 
question,  the  court  and  the  jury  may  ascertain  whether  the  company 
was  informed  from  other  sources.  In  other  words,  all  the  facts  and 
circumstances  which  have  any  reference  to  the  acceptance  of  the  par- 
ticular message,  should  be  considered  in  determining  this  question. 
When  notice  of  the  main  facts  is  given,  the  company  is  chargeable 
wuth  notice  of  every  incidental  fact  that  would  attend  the  transaction, 
and  such  as  could  have  then  been  ascertained  by  the  most  minute  in- 
quiry.'^^  If  the  operator  was  in  the  habit  of  transmitting  other  mes- 
sages for  similar  purposes,  of  the  importance  of  which  he  had  been 
informed,  or  if  the  sender  was  carrying  on  a  certain  kind  of  busi- 
ness and  was  accustomed  to  send  similar  messages  in  regard  to  such 
business  over  the  company's  lines,  the  latter  is  chargeable  with  notice 
of  its  importance,  and  any  circumstances  which  tend  to  sustain  these 
facts  may  be  showm.*^  It  has  been  held  that  the  same  rule  will  apply 

"McPeek  v.   West.   U.   Tel.   Co.,   107  200;    Eittenhouse   v.    Independent  Line 

Iowa   356,   78   N.   W.   63,  43   L.   R.   A.  of  Tel.  44  N.  Y.  263,  34  Am.  Rep.  673. 

214,   70  Am.    St.   Rep.   205;    West.   U.  ''« Gray  on  Tel.  Co.,  §89. 

Tel.    Co.    V.    Edsall,    74    Tex.    329,    15  "  West.  U.  Tel.  Co.  v.  Edsall,  74  Tex. 

Am.   St.   Rep.   835;    West.   U.   Tel.   Co.  329,  15  Am.  St.  Rep.  835. 

V.   Williford,   27   S.   W.      (Tex.)      700;  «» Postal   Tel.   Cable    Co.   v.    Lathrop, 

West.  U.  Tel.  Co.  v.  Jobe,  6  Tex.  Civ.  131  111.  575,  23  N.  E.  583,  7  L.  R.  A. 

App.  403;  Herron  v.  West.  U.  Tel.  Co.,  474,    19   Am.   St.   Rep.   55;    Mackay  v. 

90  Iowa   129,  57  N.  W.  976;    Sprague  West.  U.  Tel.  Co.,  16  Nev.  227;  West. 

V    West.   U.   Tel.   Co.,   0  Daly    (N.   Y.)  U.   Tel.   Co.   v.   Williford,     27     S.     W. 


§  539] 


MEASURE  OF  DAMAGES, 


.15 


when   the  message   is  in    cipher    as     if     written     in     the     English 
hinguage.®^ 

§  539.     Rule  in  "mental  anguish  cases." 

The  rule  just  discussed  is  not  changed  by  the  fact  that  the  nature 
and  purpose  of  the  message  relates  to  some  object  which,  if  not  prop- 
erly accomplished,  will  result  in  injury  to  the  feelings  of  some  one 
interested  in  the  message.  It  is  generally  held  that  where  a  telegraph 
company  fails  to  correctly  and  promptly  transmit  and  deliver  a  mes- 
sage relating  to  the  serious  illness,  death  or  burial  of  some  one  in 
whom  the  sender  or  addressee  is  interested,  it  will  be  liable  in  dam- 
ages for  the  mental  anguish  suffered  by  either  of  these  parties,  if 
the  company  had  information  of  the  nature  and  purpose  of  such  mes- 
sage.^" If  the  message  does  not  contain  words  sufficiently  plain  on 
its  face  to  apprise  the  company  of  such  fact,  and  there  is  no  extrinsic 
evidence  imparted  to  the  latter  at  the  time  of  accepting  the  message 
to  sustain  such  fact,  the  company  will  be  liable  only  for  nominal  dam- 
ages.^^  But,  on  the  other  hand,  if  the  company  is  informed,  either 
by  the  face  of  the  message  or  by  extrinsic  evidence,  that  it  relates  to 
the  dano-crous  illness,  death  or  the  time  of  the  burial  of  a  relative,  or 


(Tex.)  700;  Erie  Tel.,  etc.,  Co.  v. 
Grims,  82  Tex.  89;  Roach  v.  Jones,  18 
Tex.  Civ.  App.  231,  44  S.W.  677;  West. 
U.  Tel.  Co.  V.  Nagle,  11  Tex.  Civ  App. 
539. 

"West.  U.  Tel.  Co.  v.  Hyer,  22  Fla. 
f.37,   1   Am.   St.  Rep.  222. 

^  Reese  v.  West.  U.  Tel.  Co.,  123  Ind. 
294,  21  N.  E.  163,  7  L.  R.  A.  583n; 
Lynn  v.  West.  U.  Tel.  Co.,  123  N.  C. 
129,  31  S.  E.  350;  Cashion  v.  West. 
U.  Tel.  Co.,  123  N.  Car.  267,  31  S.  E. 
493,  124  Ind.  459,  32  S.  E.  746,  45  L. 
R.  A.  160;  Burnett  v.  West.  U.  Tel. 
Co.,  128  N.  Car.  103,  38  S.  E.  294; 
Meadows  v.  West.  U.  Tel.  Co.,  8  Tex. 
Civ.  App.  176,  27  S.  W.  760;  West.  U. 
Tel.  Co.  v.  Randies,  34  S.  W.  447. 

»^West.  U.  Tel.  Co.  v.  Todd,  22  Ind. 
App.  701  :  Wpist.  U.  Tel.  Co.  v.  Pearce, 


31  So.  (Miss.)  152;  Sherrill  v.  West 
U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E. 
429 ;  Cashion  v.  West.  U.  Tel.  Co.,  123 
N.  C.  267,  ;il  S.  E.  493;  Darlington 
v.  West.  U.  Tel.  Co.,  127  N.  C.  448, 
37  S.  E.  479;  Sparkman  v.  West.  U- 
Tel.  Co.,  133  N.  C.  447,  45  S.  E.  827; 
Konnon  v.  West.  U.  Tel.  Co.,  126  N. 
C.  232,  25  S.  E.  468;  Ikard  v.  West. 
U.  Tel.  Co.,  22  S.  W.  (Tex.)  534; 
\^'est.  U.  Tel.  Co.  v.  Woniack,  9  Tex. 
Civ.  App.  607;  West.  U.  Tel.  Co.  v. 
Murraj%  26  Tex.  Civ.  App.  207;  West. 
U.  Tel.  Co.  V.  May,  8  Tex.  Civ.  App. 
176,  27  S.  W.  760;  West.  U.  Tel.  Co. 
\.  Kerr,  4  Tex.  Civ.  App.  280,  23  S. 
W.  564;  West.  U.  Tel.  Co.  v.  Smith, 
26  S.  W.  (Tex.)  216;  Davis  v.  West. 
U.  Tel.  Co.,  40  W.  Va.  48,  32  S.  E. 
1026. 


516  TELEGRAPH  AXD  TELEPIIOA^E   COMPANIES.  ['§    539 

where  it  requests  the  addressee  to  come  at  once  or  some  request  of  like 
import,  the  company  will  be  liable  for  all  mental  suffering  resulting 
proximately  and  directly  from  the  failure  to  properly  transmit  or 
deliver  the  message. 

§  540.     Same  continued — relationship  of  person  affected. 

The  above  rule  is  considered  further,  in  this,  that  the  company 
must  not  only  be  informed  that  the  message  relates  to  the  serious  ill- 
ness, death  or  the  time  set  for  burial  of  some  one  in  whom  the  j)lain- 
tiff  is  interested,  but  it  must  further  be  informed  that  the  party  about 
whom  the  message  concerns  is  a  near  relative  of  his.  This  may  either 
be  imparted  to  the  company  by  the  face  of  the  message,  where  the 
wording  is  sufficiently  plain  to  indicate  this  important  fact,  or  it 
may  derive  this  information  from  extrinsic  evidence  alone,  or  in 
connection  wdth  the  facts  on  the  face  of  the  message.^*  It  seems  that 
it  is  not  as  necessary  for  the  face  of  the  message  to  be  plain  and  clear, 
with  respect  to  a  message  of  this  character,  and  one  of  a  business  na- 
ture when  written  unintelligibly ;  but  if  there  is  any  notice  or  infor- 
mation of  its  purpose,  it  becomes  the  duty  of  the  company  to  make 
further  inquiry. ^^  While  these  companies  must  have  some  informa- 
tion of  the  relationship  of  the  parties,  yet  it  is  not 'necessary  that 
the  exact  relationship  of  the  parties,  or  that  the  family  pedigree, 
should  be  set  out  in  the  message,  or  even  given  to  the  company  by  out- 
side information.  The  reason  for  the  later  view  is  the  same  as  that 
given  above  in  regard  to  the  brevity  in  which  messages  should  be 
prepared.  The  only  apparent  effect  this  would  have,  as  said  in  regard 
to  "repeating"  a  message,  would  be  "to  increase  the  revenue  of  these 

«*  Davis  V.  West.  U.  Tel.  Co.,  107  Ky.  8G0;    West.    U.   Tel.    Co.   v.   Moore,   76 

.527,   .54   S.    W.    849,    92   Am.    St.    Rep.  Tex.  66,  12  S.  W.  949,  18  Am.  St.  Eep. 

371:  Bennett  v.  West.  U.  Tel.  Co.,  128  25;  West.  U.  Tel.  Co.  v.  Rosentreter, 
N.    C.    103,   38    S.     E.    294;     Meadows    '  80  Tex.   45G,   15   S.   W.   1089;   Potts  v. 

V.  West.  U.   xel.  Co.,    132    N.    C.    40,  West.  U.  Tel.  Co.,  82  Tex.  545,  18  S. 

43    S.    E.    572;    West.    U.    Tel.    Co.    v.  W.  604;  West.  U.  Tel.  Co.  v.  Nations, 

Broesche,  72  Tex.  654,  13  Am.  St.  Rep.  82    Tex.    539,    27    Am.    St.    Rep.    914; 

843;    West.   U.  Tel.   Co.  v.   Adams,  75  West.  U.  Tel.  Co.  v.  Carter,  20  S.  W. 

Tex.  531,  12  S.  W.  857,  6  L.  R.  A.  844,  (Tex.)    834. 

16   Am.    St.    Rep.    920;    West.    U.    Tel.  '^  West.    V.    'I'd.    Co.    v.      Moore,     76 

Co.   V.   Feegles,   75  Tex.   537,   12   S.   W.  Tex.   66,   18   Am.   St.   Rep.   25. 


>§>    541]  MEASUJiE  OF   DAMAGKS.  517 

companies."'""'  In  a  recent  decision  rendered  in  Texas,  the  rule  seems 
to  be  that  the  company  is  charged  with  knowledge  of  the  relationship 
of  the  parties  by  the  mere  fact  of  the  nature  of  the  message,  where 
it  is  one  relating  to  the  serious  illness,  death  or  time  of  funeral,  or 
the  like.*'^  ''When  such  comiiiniiiention  relates  to  sickness  and  death, 
there  accompanies  them  a  common-sense  suggestion  that  they  are  of 
importance,  and  that  tlie  ]iersons  addressed  have  in  them  a  serious 
interest.  "^^ 

§  541.     Same  continued — reason  of  rule — nearness  of  relationship. 

The  reason  of  the  rule  that  the  relationship  of  the  parties  must 
be  known  by  the  company  at  the  time  the  message  is  accepted,  in 
order  to  recover  damages  for  mental  suffering,  as  the  natural  and 
direct  result  of  its  failure  to  discharge  its  duty,  is  obvious.  No  one 
can  recover  damages,  as  was  said  in  the  beginning  of  this  chapter, 
unless  his  rights  have  been  infringed  upon,  and  then  they  are  only 
given  as  a  compensation  for  such  infringement.  It  is  true,  that  we 
grieve  to  hear  of  the  serious  illness  or  death  of  close  friends,  but  it 
would  be  wholly  and  entirely  foreign  to  sound  reason  to  say  that  we 
would  suffer  the  same  pangs  and  untold  grief  at  the  death  of  a  friend 
as  we  would  to  hear  of  the  death  of  a  member  of  one's  family  or  close- 
ly of  kin.  It  is  only  when  this  relationship  exists,  or  is  presumed  to 
exist — which  is  a  presumption  all  relatives  in  consanguinity  bear — 
that  the  mind  can  become  so  impaired  by  suffering  as  to  entitle  the 
])orson  to  damages  for  such.  In  other  words,  there  must  be  such  an 
injury  to  the  feelings  or  sufferings  of  mind,  as  can  be,  in  a  sense, 
measured  by  a  pecuniary  compensation,  before  the  party  can  recover ; 
and  this  is  never  presumed,  except  where  the  parties  are  closely  re- 
lated by  blood.  Therefore,  if  tlie  message  concerns  some  one  who  does 
not  stand  in  this  relation,  the  company  will  not  be  liable  for  damages 
caused  by  mental  suffering,  although  it  may  be  informed  of  its  pur- 
pose.    However,  if  the  message  concerns  the  dangerous  illness,  death 


70. 


"•West.  U.  Tel.  Co.  V.  Tyler,   74   111.       v.  Smith    (Tex.),  33  S.  W.  742:   West. 

U.    Tel.    Co.    V.    Adams,    75    Tex.    531. 
^MVest.  U.  Tel.  Co.  v.  Coflin.  88  Tex.       jo  S.  \V.  857.  G  L.  E.  A.  844,   16  Ain. 
fl4.  30  S.  W.  89fi;   West.  U.     Tel.     Co.       g^.     -^         ,).,q 


V.  Luck,  91  Tex.  178,  41  S.  W.  469,  66 
Am.  St.  Rep.   870;    West.   U.  Tel.   Co 


Id. 


51S  TELEGRAPH  AA'D  TELEPHONE   COMPANIES.  [<§>    541 

or  time  of  burial  of  some  one  related  to  plaintiff,  and  it  is  affirma- 
tively shown  that  there  was  a  peculiar  tenderness  of  relation  existing 
between  the  parties,  and  the  company  is  informed  of  this  fact,  it 
would  be  liable  for  mental  suffering  for  negligently  transmitting  or 
delivering  the  message.®® 

§  542.     Same  continued — interest  of  the  party  in  the  transaction. 

When  the  person  is  not  a  party  to  the  message,  but  is  greatly  inter- 
ested in  the  results,  the  company  must  be  informed  of  his  interest  at 
the  acceptance  of  the  message  in  order  to  be  held  liable.^"  He  is  not 
a  party  to  the  contract,  and  only  such  damages  can  be  recovered  as 
result  from  the  company's  negligence  in  transmitting  or  delivering  the 
message,  and  such  as  might  have  been  presumed  to  have  entered  into 
the  contemplation  of  the  minds  of  the  contracting  parties  at  the  time 
the  contract  was  made.  It  is  the  result  of  the  breach  supposed  to  have 
been  contemplated  by  the  contracting  parties,  and  not  those  entertain- 
ed by  some  other,  of  whose  existence  the  company  would  not  likely 
be  aware.  If,  however,  the  company  is  informed  that  the  message 
concerns  some  person  who  is  not  a  party  to  the  message,  it  would  be 
liable  to  him  for  the  resulting  damages  just  as  if  he  were  a  party  to 
the  message ;  and,  it  matters  not  in  what  way  it  may  derive  this  in- 
formation.^^ It  seems,  that  the  damages  due  a  wife  or  husband  for 
mental  suffering  are  regarded  as  joint  and  either  may  maintain  a 
suit  for  the  recovery  of  same.®^  Thus,  it  was  held  that  the  wife 
may  recover  for  mental  suffering  caused  by  the  failure  of  her  rela- 
tives to  meet  her  at  a  station  and  assist  in  caring  for  the  body  of  her 
dead  child,  although  the  message  was  sent  by  her  husband,  and  the 
company  was  not  notified  of  her  interest  in  the  message. 

**  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  v.   Grigsley,   29   S.    W.   406.      Compare 

94,  30   S.   W.   896;    West.   U.   Tel.   Co.  Landie   v.    West.    U.   Tel.    Co.,    124   K 

V.  McMillan,  30     S.     W.     (Tex.)     298;  C.   528,   32,    S.   E.   886;    West.   U.   Tel. 

West.  U.  Tel.  Co.  v.  Garrett,  34  (Tex.)  Co.  v.  Carter,  20  S.  W.  834;   West.  U. 

S.   W.   649.  Tel.  Co.  v.  Russell,  31  S.  W.  698. 

••Morrow  v.   West.  U.  Tel.   Co.,   107  "West.  U.  Tel.  Co.  v.  Evans,  5  Tex. 

Ky.  517;  Driden  v.  West.  U.  Tel.  Co.,  Civ.  App.  55,  23  S.  W.  998. 

54  S.  W.  830 ;   Southwestern  Tel.,  etc.,  •==  Loper  v.  West.  U.  Tel.  Co.,  70  Tex. 

Co.  V.  Gotcher,  93  Tex.  114,  53  S.  W.  689,  8  S.  W.  600.     See  also  Southwest- 

686;  West.  U.  Tel.  Co.  v.  Motley,  27  ern  U.  Tel.  Co.  v.  Dale,  27  S.  W.  1059. 
S.    W.    (Tex.)    51;    West.   U.   Tel.   Co. 


§    543]  MEASURE   OF  DAMAGES.  519 

§  543.     Same  continued — deprived  of  the  addressee's  consolation. 

This  brings  us  to  a  question  with  peculiar  features,that  is,  Whether 
or  not  damages  may  be  recovered  for  mental  suffering  caused  by  one 
being  deprived  of  the  presence  and  consolation  of  some  close  rela- 
tive, as  the  direct  result  of  the  company's  dereliction  of  duty  ?  In 
other  words,  can  a  person  recover  damages  for  mental  suffering  caus- 
ed by  the  absence  of  some  one  who  was  deprived  of  being  present  with 
the  former  while  in  deep  grief,  the  loss  of  whose  consolation  was  the 
result  of  the  company's  negligence  ?  It  seems  that  if  the  company 
was  informed  that  the  person  would  suffer,  or  that  the  consolation  of 
the  addressee  was  the  main  purpose  of  the  message,and  without  which 
great  suffering  would  be  endured,  it  would  be  liable  for  failing  to  dis- 
charge its  duty ;  otherwise  it  would  not  be  liable.®^  Thus,  where  the 
wife,  who  was  at  the  deathbed  of  her  husband,  sent  a  telegram  to 
her  daughter,  requesting  the  latter  to  come  to  her,  the  company  would 
be  liable  to  the  daughter  for  damages  caused  by  the  mental  suffering, 
where  the  message  was  delayed  and  she  otherwise  would  have  reach- 
ed her  father  in  time  to  have  seen  him  before  his  death.  But  it  would 
not  be  liable  in  damages  to  the  mother  for  mental  suffering  caused  by 
the  want  of  the  daughter's  consolation,  unless  the  company  had  know- 
ledge that  this  would  be  the  natural  and  direct  result  of  its  negli- 
gence.®* 

•'West.  U.  Tel.  Co.  v.  Luck,  91  Tex.      so    West.    U.    Tel.    Co.    v.    Burrow,    10 
178,   41    S.   W.   469,   66   Am.   St.   Rep.      Tex.  Civ.  App.  122,  30  S.  W.  378. 
870;  West.  U.  Tel.  Co.  v.  Nations,  82  •♦West.  U.  Tel.  Co.  v.  Luck,  91  Tex. 

Tex.  530,  27  Am.  St.  Rep.  914.     See  al-       178,   66   Am.    St.   Rep.   869,   41    S.   W. 

469. 


CHAPTER  XXII. 

MEASURE  OF  DAMAGES— CONTINUED— LOSS  OF    EXPECTED 
PROFITS  ON  SALES  BY  ERROR  OR  NEG- 
LIGENCE IN  TRANSMISSION. 

§  544.  In  general. 

545.  Sales  prevented — plaintiff  vendor — in  general — legal  sales. 

546.  Same  continued — measure  of  damages. 

547.  Loss  must  be  actual  and  substantial. 

548.  Orders  for  goods  not  delivered — in  general. 

549.  Same  continued — measure  of  damages. 

550.  Order  for  goods  erroneously  transmitted — purchaser's  duty 

551.  Same  continued — goods  shipped  to  wrong  place. 

552.  Same  continued — stock,  bonds,  etc. 

553.  Messages  directing  agent  to  sell  or  purchase. 

554.  Same  continued — order  to  close  option  to  purchase. 

555.  Announcement  of  prices  or  state  of  market. 

556.  Contemplating  shipping — delay  in  message— loss. 

§  544.     In  general. 

It  is  our  purpose  to  discuss  at  some  length,  in  this  chapter,  the 
loss  of  expected  profits  in  transactions  or  sales,  caused  by  the  neg- 
ligence of  telegraph  companies  in  transmitting  or  delivering  mes- 
sages, and  the  means  by  which  the  amount  of  damage  or  loss  sus- 
tained thereby  may  be  ascertained.  The  negligence  of  telegraph  com- 
panies may  be  the  proximate  cause  of  preventing  contracts  of  sale 
from  being  consummated,  or  it  may  prevent  a  contract  from  being 
made  at  all  whereby  great  substantial  losses  may  be  suffered ;  in  either 
case,  the  company  would  be  liable  for  all  direct  and  proximate  losses 
in  the  way  of  actual  and  substantial  gains  and  profits  which  would  be 
the  natural  result  of  same.  The  company  is  the  agency  or  means  by 
which  the  contracting  parties  are  brought  together,  and  its  negligent 
act  in  transmitting  or  delivering  the  message  containing  an  accept- 
ance of  a  contract,  would  have  the  same  effect  as  if  it  were  a  direct 
breach  of  the  contract.  A  leading  American  authority,  with  respect 
to  the  measure  of  damages  for  a  breach  of  a  contract,  holds :  "The 
party  injured  by  a  breach  of  a  contract  is  entitled  to  recover  all  his 
damages,  including  gains  prevented,  as  well  as  losses  sustained,  pro- 
vided they  are  certain  and  such  as  might  naturally  be  expected  to 

(520) 


'^    545]  MEASURE   OF  DAMAGES.  521 

follow  from  the  breach.  It  is  only  uncertain  and  contingent  profits, 
therefore,  which  the  law  excludes;  not  such  as  are  the  immediate  and 
necessary  result  of  the  breach  of  the  contract,  which  may  be  fairly 
supposed  to  have  entered  into  the  contemplation  of  the  parties  when 
they  toade  it,  and  are  capable  of  being  definitely  ascertained  by  ref- 
erence to  the  established  market  rates."  ^  This  rule  may  be  consid- 
ered as  the  basis  of  the  measure  of  damages  which  may  have  been  in- 
curred by  reason  of  the  company's  negligence. 

§  545.     Sales  prevented — plaintiff  vendor — in  general — legal  sales. 

It  is  often  the  case  that  parties  who  are  at  a  distant  place  con- 
summate certain  sales  by  means  of  telegraph  companies,  and  the  sub- 
ject-matter of  the  sale  may  be  either  at  or  near  the  place  of  the  pur- 
chaser, and  there  to  be  delivered ;  or  it  may  be  where  the  vendor  is 
and  to  be  delivered  to  the  former  at  some  other  place.  Much  de- 
pends in  the  sale  on  the  accuracy  and  promptness  of  the  company, 
since  one  small  error  on  its  part  might  be  of  serious  injury  to  one  of 
the  contracting  parties.  It  is  always  their  duty  to  send  the  mes- 
sage in  its  exact  language  and  as  prepared  by  the  sender,  and  de- 
liver it  as  speedily  as  possibly.  More  especially  is  this  the  case 
where  the  message  concerns  sales  or  commercial  transactions,  which 
fact  is  often  more  or  less  made  known  to  them  by  the  character  of 
the  message.  It  is  not  meant,  however  that  the  rule  applies  to  sales 
or  commercial  transactions  of  all  kinds ;  it  only  applies  to  legal  sales 
or  transactions.  As  said  in  a  foi-mer  part  of  this  work,  telegraph 
companies  were  not  incorporated  to  perpetrate  crimes,  or  to  carry  on 
illegal  transactions;  their  purposes  are  lawful,  and  only  such  can 
they  be  under  any  duty  to  perform.  The  object  of  the  law  is  to  pre- 
vent evildoers  from  carrying  on  their  nefarious  acts  and  misdoings ; 
to  be  sure,  the  law  would  not  create  any  being  or  institution  whose 
object  would  be  in  direct  conflict,  and  inconsistent  with  the  princi- 
ples of  the  law  itself.  So,  it  follows,  that  these  companies  would  be 
under  no  obligation  to  discharge  any  act  Avhich  was  in  itself  illegal  or 
immoral.  ?^o  sale  or  transaction  which  showed  on  its  face  the  il- 
legality or  immorality  of  the  affair,  or  which  was  otherwise  made 

'  Griffin  v.  Calver,  Ifi  \.  Y.  489,  cited 
in  18  Am.  Rep.  12. 


522  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    545 

known  to  the  company,  shall  be  considered  within  the  scope  of  this 
chapter,  but  only  such  as  arc  legal  and  moral  in  effect. 

§  546.     Same  continued — measure  of  damages. 

The  measure  of  damages  which  may  be  recovered  from  a  telegraph 
company  for  negligently  transmitting  or  delivering  a  message, 
whereby  a  sale  has  been  prevented,  is  the  difference  between  the 
price  of  the  subject-matter  of  sale  at  the  time  it  would  have  been  sold, 
had  it  not  been  for  such  negligence,  and  the  price  the  plaintiff  is 
thereafter  enabled  to  obtain  therefor,  after  exercising  reasonable  dili- 
gence to  make  such  latter  sale,^  together  with  expenses  necessarily  in- 
curred in  consequence  of  the  delay  or  failure.^  In  other  words,  if 
the  plaintiff  could  have  gotten  a  certain  price  for  the  thing  to  be  sold 
at  the  time  the  message  was  delivered  to  the  company,  but  was,  after 
the  negligence  of  the  company  in  transmitting  or  delivering  the  mes- 
sage, only  able  to  sell  at  a  less  price,  and  that  by  reasonable  diligence ; 
the  measure  of  damages  would  be  the  difference  between  the  two 
prices,  together  with  the  necessary  expenses  incurred  in  making  the 
latter  sale.  The  object  of  the  law  in  such  cases  is  to  compensate  the 
injured  party  as  near  as  possible  for  the  loss  incurred.  Thus,  in  a 
case  where  the  words  contained  in  the  message  were,  "Ship  your  hogs 
at  once,"  the  message  was  delayed  four  days,  and  in  consequence 
thereof  the  plaintiff  had  to  keep  his  hogs  four  days  longer  than  he 
would  have  done,  thus  incurring  expenses  for  feeding,  etc.,  and  hav- 
ing to  sell  at  a  decreased  price.  It  was  held  that  he  might  recover 
the  difference,  at  the  place  of  delivery,  between  the  market  value 
of  the  hogs  on  the  day  when  they  would  have  been  delivered  had  the 
message   been    delivered    promptly    and    the    market   value    on    the 

'West.  U.  Tel.     Co.  v.  Lindley,     89  v.  Williford,  2  Tex.  Civ.  App.  574,  27 

Ga.    484,    15    L.    R.    A.    3G;    West.    U.  S.    W.   700;    Brooks  v.    West.   U.   Tel. 

Tel.  Co.  V.  James,  90  Ga.  254,  IG  S.  E.  Co.,    72   Pac.      (Utah)    499.     Compare 

813;   Evans  v.  West.  U.  Tel.  Co.,   102  West.  U.  Tel.  Co.  v.  Harman,  2     Tex. 

Iowa   219,   71    N.   W.   219;    Herron   v.  Civ.  App.   100. 

West.    U.    Tel.    Co.,    90    Iowa    129,    57  « West.   U.   Tel.     Co.  v.   Collins,     45 

N.  W.  696;  West.  U.  Tel.  Co.  v.  Nye,  Kan.  88,  10  L.  R.  A.  575n,  25  Pac.  187; 

etc..  Grain  Co.,  97  N.  W.    (Neb.)   305;  West.  U.  Tel.  Co.  v.  Shumate,  2  Tex. 

\Aest.   U.   Tel.   Co.   v.    Brown,   84   Tex.  Civ.  App.  429;   Lane  v.  Montreal  Tel. 

54,   19   S.   W.   336;    West.  U.  Tel.   Co.  Co.,  7  U.  C.  C.  P.  23. 


^  547]  MEASURE  OF  DAMAGES. 


123 


Jay  when  the  i)laiiitifY  was  able  to  deliver  them  after  the  re- 
ceipt of  the  message,  together  with  the  extra  expense  to  which  he 
was  subjected.'*  If  there  was  any  extra  expense  incurred  in  drayage, 
storage  or  transportatior,  or  if  he  was  out  transportation  or  message 
fares  or  charges  in  consummating  the  last  sale,  this  may  be  recovered. 
In  other  words,  to  brief  the  rule  in  one  sentence,  the  plaintiff  may 
recover  the  profits  he  would  have  reaped  from  the  bargain  had  it  been 
perfected.  So,  where  the  message  concerns  the  sale  and  shipment  of 
a  carload  of  mules,  and  on  account  of  the  delay  in  the  delivery  of  a 
message  to  the  owner  of  the  mules  they  were  shipped  on  a  subsequent 
day  and  sold  at  a  reduction,  he  was  allowed  to  recover  the  profit  he 
would  have  made  had  the  message  not  been  delayed.^  It  is  not  neces- 
sary that  the  profit  should  have  been  made  out  of  the  person  first  of- 
fering to  buy,  but  if,  on  account  of  the  company's  negligence,  the 
plaintiff  was  prevented  from  realizing  it  out  of  some  other  offering 
to  buy  at  the  same  time  for  the  same  price,  he  may  recover.  Thus, 
if  the  plaintiff  had  been  offered  the  same  price  for  a  certain  number 
of  bales  of  cotton  by  another  cotton  buyer,  at  the  same  time  the  mes- 
sage was  delivered  to  the  company  offering  the  acceptance  of  the  sale 
to  a  former  bidder,  but  is  prevented  from  consummating  the  last  on 
the  account  of  the  negligent  delay  of  the  message,  he  may  recover 
on  account  of  the  second  sale.^  If  the  expense  in  any  instance  in- 
curred in  the  second  sale  could  have  been  avoided,  it  cannot  be  re- 
covered,*^ as  only  necessary  expenses  can  be  recovered, 

§  547.     Loss  must  be  actual  and  substantial. 

We  are  again  reminded  of  the  recognized  rule  in  the  noted  English 
case,^  when  we  come  to  consider  the  nature  of  the  loss  sustained  in 
cases  about  which  we  are  discussing  in  this  chapter.  That  is  that  a 
loss  sustained  in  a  sale  by  reason  of  the  negligence  of  a  telegraph 
company  in  transmitting  a  message,  respecting  such  sale,  must  be  ac- 
tual and  substantial  in  order  to  be  recovered.  ^N'ot  only  is  this  fact 
sufficient,  but  a  loss  must  be  proven  by  competent  evidence,  because, 

*Manville  v.   West.   U.   Tel.    Co..   37  "Postal    Tel.    Co.    v.    Ehett,    33    So. 

Icwa  214,  18  Am.  Rep.  8.  (Miss.)    412;   35  Id.   829. 

» West.  U.  Tel.  Co.  v.  Eubanks,   100  '  See  note  2. 

Ky.   591,   66  Am.   St.   Rep.   361.  »Hadley  v.  Baxcndale,  9  Exch.  341. 


524  TELEGRAPH  AND   TELEPHONE   COMPANIES.  [§    547 

while  it  may  be  presumed  in  certain  cases  that  a  telegraph  company 
has  been  guilty  of  negligence,  a  loss  will  never  be  presumed  by  the 
mere  fact  of  negligence  on  the  part  of  the  company.^  Thus,  if  the 
quantity  of  the  goods  to  be  sold  is  uncertain,  or  depends  upon  other 
contingencies,  there  can  be  no  recovery  of  profits ;  ^^  or,  if  there  is  no 
evidence  that  the  goods  could  or  would  have  been  shipped  to  him,  if 
the  message  had  been  promptly  sent  and  delivered,  there  can  be  no 
recovery.  ^^  The  profits,  in  order  to  be  recovered,  must  not  be  such 
as  are  classed  with  those  which  are  purely  speculative  or  conjectural ; 
and  more  especially  is  this  true  when  they  relate  to  gambling  tran- 
sactions, since  in  no  breach  of  a  contract  can  any  damages  be  recov- 
ered which  are  speculative  or  such  as  depend  on  the  happening  of 
some  event  which  may  never  come  to  pass.  They  must  be  such  as 
most  reasonably  would  have  been  realized  had  the  message  been 
promptly  transmitted  and  delivered,  and  not  such  as  depended  upon 
the  hazards  or  chances  of  business.  ^^  Thus,  if  the  profits  to  be  real- 
ized depend  on  another  sale  which  may  or  may  not  be  made,  or  on 
the  vendee's  acceptance,  or  on  another's  judgment,  or  when  the  profits 
are  conjectural  or  speculative,  they  cannot  be  recovered. 

§  548.     Orders  for  goods  not  delivered — in  general. 

!N'ot  only  can  there  be  a  recovery  of  all  losses  sustained  in  a  sale  by 
reason  of  the  negligence  of  the  company  in  failing  to  properly  trans- 
mit a  message  pertaining  thereto,  but  all  gains  in  the  purchase  of 
goods,  which  may  have  been  prevented  for  the  same  reason,  may  be 
equally  recoverable.  As  was  said,  many  sales  are  consummated  by 
means  of  telegraphic  communication,  and  there  cannot,  of  course,  be 

•Pennington  v.  West.  U.  Tel.  Co.,  67  S.  444;   Cohn  v.  West.  U.  Tel.  Co.,  46 

Iowa   631,   56   Am.   Rep.    387;    Mickel-  Fed.  40,  affirmed    (C.  C.  A.),  48  Fed. 

wait  V.   West.   U.   Tel.   Co.,    113   Iowa  810;  Beaupre  v.  Pac,  etc.,  Tel.  Co.,  21 

177.     Compare  Alexander  v.   West.  U.  Minn.   155;   lieynolds  v.  West.  U.  Tel. 

Tel.  Co.,  67  Miss.  386,  7  So.  280.  Co.,  81  Mo.  App.  223;   Kiley  v.  West. 

"Kingdom  v.  Montreal  Tel.   Co.,   18  U.   Tel.   Co.,   39   Hun     (N.    Y.)      158; 

N.   C.  A.  B.   60.  Cannon  v.   West.   U.   Tel.   Co.,    100   X. 

"Meggett  V.   West.   U.   Tel.   Co.,   69  Car.  300,  6  Am.  St.  Rep.  590;  Reliance 

Miss.   198,   13  So.  815;   Cahn  v.  West.  Lumber   Co.   v.   West.   U.  Tel.   Co.,  58 

U.   Tel.   Co.,   46   Fed.   40.  Tex.   395,   44   Am.   Rep.   620. 

"West.  U.  Tel.  Co.  v.  Hall,  124  U. 


§    540]  MEASURE   OF  DAMAGES.  525 

a  sale  witlioiit  a  purclia.-c.  While  in  a  sale  of  goods  liuili  parties,  as 
a  general  rule,  are  equally  benefited,  one  parts  with  his  goods  with- 
out injuring  his  trade  and  receives  in  lieu  thereof  their  money's 
worth,  while  the  purchasing  party  could  hardly  carry  on  his  business 
without  the  particular  goods.  So,  they  are  both  about  equally  bene- 
fited, so  long  as  the  price  of  the  commodities  do  not  change;  and  it  is 
this  fact — the  fluctuating  prices — whicli  causes  the  one  to  gain  and 
the  other  to  lose.  In  other  words,  if  the  owner  of  the  goods  is  pre- 
vented, by  any  cause,  from  selling  on  one  day,  and  the  price  of  the 
goods  goes  up  the  next,  when  he  does  sell,  there  is  a  gain  on  his  part, 
but  a  loss  on  the  part  of  the  purchaser.  So,  if  there  is  an  order 
made  by  means  of  a  telegram  but  the  same  is,  through  the  company's 
negligence,  not  sent  or  is  delayed  in  delivery  an  unusually  long  time, 
during  which  the  price  of  goods  goes  up,  the  purchaser  w^ould  most 
certainly  be  damaged.  In  other  words,  he  would  have  gained  in  the 
purchase  of  the  goods  had  it  not  been  for  the  negligence  of  the  com- 
pany; but  the  question  in  this  instance  is.  By  what  method  or  means 
can  the  amount  of  damages  be  ascertained  ? 

§  549.     Same  continued — measure  of  damages. 

The  measure  of  damages  in  cases  where  the  purchaser  of  goods  or 
property  fails  to  obtain  them  at  the  price  he  otherwise  would  have 
done  had  the  message  been  properly  and  promptly  delivered  to  the 
vendor,  is  similar  to  that  in  ascertaining  the  amount  to  be  recovered 
in  those  cases  where  a  loss  has  been  sustained  by  the  failure  of  a  sale 
l)eing  consummated,  except  it  is,  in  fonn,  reversed.  To  be  more  ex- 
plicit, the  measure  of  damages  to  be  recovered  for  a  loss  sustained  by 
the  failure  of  the  company  to  promptly  transmit  and  deliver  a  mes- 
sage, which  contains  an  order  for  goods,  is  the  difference  between  the 
price  of  the  goods  at  the  time  and  place  the  message  should  have 
been  delivered,  and  the  price  which  was  paid  for  the  same  goods,  at 
the  same  place,  by  another  order,  presented  within  a  reasonable  time 
after  it  has  been  learnd,  tlirough  due  diligence,  that  the  first  was  not 
delivered. ^^      The  snme  ritli'  will  apply  if  the  order  was  delayed  in 

"West.  U.  Tel.  Co.  v.  Way,  83  Ala.  West.  U.  Tel.  Co.  v.  Harris.  19  111. 
542,  4  So.  844;  West.  U.  Tel.  Co.  v.  App.  347;  Squire  v.  West.  U.  Tel.  Co.. 
Graham,  1  Colo.  2.30.  9  Am.  Rep.  13f,:       98  Mass.  232,  93  Am.  Dec.    157;   Dodd 


526  TELEGKAPH   AND  TELEPHONE   COMPANIES.  [<^    549 

the  deliverA'  an  unreasonable  time.^"*  That  is,  the  measure  of  dam- 
ages would  be  the  difference  between  the  price  of  goods  at  the  time 
the  order  should  have  been  delivered  by  reasonable  diligence  on  the 
part  of  the  company,  and  the  price  of  the  same  goods  at  the  time 
the  order  was  delivered.  It  must  be  understood,  however,  that  if 
the  delay  w'as  the  result  of  some  uncontrollable  power,  such  as  atmos- 
pheric hindrances  or  the  act  of  the  ]3ublic  enemy,  and  not  that  of  the 
company's  negligence,  it  would  not  be  liable  for  these  losses.  It 
is,  nevertheless,  the  presumj)tion  that  the  negligence  of  the  company 
was  the  cause  of  the  loss,  and  the  burden  rests  upon  the  latter  to 
overcome  this  presumption.  It  has  been  attempted  to  be  shown  that 
not  only  should  the  difference  in  these  two  prices  be  recovered,  but, 
in  addition  to  this,  the  profits  which  would  have  been  probably  real- 
ized in  a  resale  of  the  goods  should  also  be  recovered.  It  is  gen- 
erally held,  however,  that  this  loss  is  entirely  too  remote  and  specula- 
tive;^^ but  if  there  has  been  a  resale  of  the  goods  effected  or  agreed 
upon,  Avhereby  a  profit  would  have  been  realized  then  this 
also  can  be  recorded,  as  this  is  not  depending  upon  any  unreason- 
able conditions. -^^  In  connection  with  this  statement,  it  has  been  held 
that  if  the  order  contained  both  an  order  to  buy  and  sell,  the  losses 
which  would  have  been  sustained  on  the  purchase  order  must  be  de- 
duced from  the  profits  he  w^ould  have  made  on  the  sale  order,  in  de- 
termining the  measure  of  damages.     So,  the  latter  rule  applies  where 

Grocery  Co.  v.  Tel.  Cable  Co.,   112  Ga.  '=  West.  U.   Tel.   Co.  v.     Fellner,     5S 

685,  .37  S.  E.  981;  Turner  v.  Hawkeye,  Ark.    29,    41    Am.    St.   Rep.    81;    West, 

etc.,    Tel.    Co.,    41    Iowa    458,    20    Am.  U.  Tel.  Co.  v.  Graham,   1   Colo.  230,   9 

Kep.    605;    True    v.    International    Tel.  Am.   St.  Rep.   136;   Squire  v.  West.  U. 

Co.,  60  Me.  9,  11  Am.  Rep.  156;Mowry  Tel.    Co.,    98   Mass.    232,    93   Am.    Dec. 

V.  West.  U.  Tel.  Co.,  51  Hun     (N.  Y.)  157;   Hibbard  v.  West.  U.  Tel.  Co.,  33 

126;  United  States  Tel.  Co.  v.  Wenger,  Wis.  558,   14  Am.  Rep.   775;   West.  U. 

55  Pa.  St.  262,  93  Am.  Dec.  751 ;  Gulf,  Tel.  Co.  v.  Hall,   124  U.   S.  444. 

etc.,  R.  Co.  V.  Loonie,  82  Tex.  323,  27  "West.    U.    Tel.    Co.    v.    Brnwn,    84 

Am.  St.  Rep.  891;   Carver  v.  West.  U.  Tex.    54,    19    S.    W.      336;    Walden     v. 

Tel.  Co.,  31  S.  W.    (Tex.)    432.  West.  U.  Tel.  Co.,   105  Ga.  275,  31   S. 

"West.  U.  Tel.  Co.  V.  Carver,  15  Tex.  E.    172;    West.   U.   Tel.    Co.   v.   Landis. 

Civ.    App.    547;    Pearsall    v.    West.    U.  12  Atl.    (Pa.)    467;   Postal  Tel.  Co.  v. 

Tel.    Co.,    124   N.   Y.   256,    21    Am.    St.  Rliett,  33  So.    (Miss.)   412,  35  So.  829: 

Rep.    662,   affirming   44   Hun     (N.   Y.)  West.  U.  Tel.  Co.  v.  J.  A.  Kemp  Gro- 

532.  cer   Co.,  28   S.  W.   905;    West.  U.   Tel. 

Co.  V.  Thomas,  1  Tex.  Civ.  App.  105. 


<^    550]  MEASURE   OF  DAMAGES.  527 

the  party  on  whom  the  order  is  made  does  both  the  buying  and  sell- 
ing by  the  authority  given  in  the  message,  and  not  where  the  sender, 
as  in  the  first  rule  stated  above,  accomplishes  the  resale.  To  recover 
in  any  instance,  the  plaintiff  must  prove  that  the  addressee  of  the 
delayed  or  unsent  message,  containing  the  order,  would  have  filled  it, 
since  if  there  was  a  doubt  of  this  fact  which  had  not  been  overcome 
by  evidence,  he  could  only  recover  nominal  damages.''  All  neces- 
sary expenses  incurred  in  the  transaction  can  be  recovered  in  these 
cases  the  same  as  where  a  sale  was  prevented  from  being  made  by  the 
negligence  of  the  company. 

§  550.     Order    for     goods     erroneously    transmitted — purchaser's 
duty. 

The  preceding  paragraph  referred  to  the  measure  of  damages  for 
losses  sustained  by  the  company's  negligence  in  not  sending,  or  de- 
laying a  message  sent,  containing  an  order  for  goods :  so  we  shall,  in 
this  section,  speak  of  the  losses  sustained  by  reason  of  the  com- 
pany erroneously  transmitting  the  order  contained  in  the  message, 
and  the  measure  of  damages  to  be  recovered  therefor.  It  is  as  much 
the  duty  of  these  companies  to  transmit  a  message  accurately  and  in 
the  exact  words  in  which  it  is  prepared  by  the  sender,  as  it  is  to 
promptly  transmit  and  deliver  the  same.  While  it  may  require  more 
exertion  and  a  greater  degree  of  care  on  the  part  of  the  companv  to 
transmit  a  message  than  it  does  in  the  promptness  of  sending  or  de- 
livery, yet  the  duty  imposed  upon  it  is  the  same  in  either  instance. 
In  other  words,  it  requires  a  complete  performance  of  both  of  these 
before  its  full  and  entire  duty  has  been  complied  with,  since  it  would 
be  a  useless  matter  on  the  part  of  the  sender  to  require  a  proper  dis- 
charge of  one  of  these  duties  without  imposing  upon  the  company  the 
obligation  of  performing  the  other.  Very  often,  orders  for  goods, 
sent  by  means  of  telegrams,  are  erroneously  transmitted,  and  when 
received  by  the  addressee  they  show  on  their  face  items  which  call 
for  a  greater  or  less  quantity  than  ordered  by  the  sender.  When  the 
latter  is  injured  thereby,  the  question  i?.  What  loss  has  he  suffered, 

"Meggett  V.  West.  U.  Tel.  Co.,  69 
Miss.  198,  13  So.  815;  West.  U.  Tel. 
Co.  V.  Burns.  70  S.  W.    (Tux.)    784. 


528  ■iKLKtiKAPH  a:sd  telephone  companies.  [§  550 

and  what  is  the  measure  of  damages  to  be  used  in  recovering  such 
loss  ?  The  general  rule  is,  that  where  a  message  is  erroneously  trans- 
mitted, whereby  an  excess  of  goods  has  been  ordered,  the  measure  of 
damages  is  the  difference  between  the  market  value  of  the  excess,  at 
the  place  of  shipment,  and  that  at  the  place  to  Avhich  they  were 
shipped.  ^^  Thus,  if  an  order  is  for  5,000  sacks  of  salt,  but  the  order 
as  received  calls  for  5,000  casks,  the  amount  to  be  recovered,  when 
the  salt  has  depreciated  in  value  at  the  place  to  which  it  is  shipped, 
is  the  difference  between  the  market  value  of  the  excessive  quantity 
of  salt  at  the  -place  of  purchase  and  that  at  the  former  place,  together 
with  the  expense  of  transporting  the  excessive  amount. ^^  If  the 
goods  are  perishable  and  become  of  no  value,  the  measure  of  damages 
would  be  the  value  of  the  excess  of  goods  at  the  place  of  shipment, 
together  with  the  expense  in  transportation.^*^  While  the  purchaser 
should  exercise  reasonable  diligence  to  make  the  loss  as  light  as  possi- 
ble, it  seems  that  it  is  not  his  duty  to  transport  them  to  a  more  favor- 
able place  for  sale  than  that  at  which  they  happen  to  be ;  ^^  nor  is  it 
his  duty  to  reship  them  to  the  place  where  they  were  purchased.^" 
But  if  he  should  decline  to  accept  the  excess  of  goods  and  they  ar(i 
shipped  back  to  the  vendor,  he  may  recover  the  expense  incurred  in 
the  transportation  both  ways  and  the  depreciated  value  of  the  goods, 
if  such  has  been  the  case.-^  If  the  message  eiToneously  calls  for  a 
less  amount  of  goods  than  was  ordered,  the  measure  of  damages  will 
be  the  same  as  in  those  cases  where  the  company  negligently  failed 
to  transmit  the  order,  or  where  it  was  unreasonably  delayed  in  de- 
livery. 

§  551.     Same  continued — goods  shipped  to  wrong  place. 

Errors  of  message,  in  not  correctly  transmitting  the  amount  as  or- 
dered, is  not  necessarily  the  only  manner  in  which  loss  may  occur, 

"•Leonard   v.   Xew     York,   etc.,     Tel.  '"  Elsey   v.   Postal   Tel.   Cable   Co.,   15 

Co.,   41    N.   Y.    544,    1    Am.   Rep.    446;  Daly   (N.  Y.)    58. 

New   York,   etc.,    Printing   Tel.   Co.,   v.  -'  Leonard    v.    New    York,    etc.,    Tel. 

Dryburg,  .35  Pa.  St.  298,  78  Am.  Dec.  Co.,  41   N.  Y.  544,   1   Am.  Rep.  446. 

3.38;  Washington,  etc.,  Tel.  Co.  v.  IIol)-  --West.    U.   Tel.   Co.   v.   Reid,   83   Ga. 

son,   15  Gratt    (Va.)    122.  401;    West.   U.   Tel.   Co.   v.   Stevens,   16 

"Leonard  v.   New     York,  etc.,     Tel.  S.    W.    (Tex.)    1095. 

Co.,  41   N.   Y.   544,   1   Am.  Rep.   446.  -"*  Bowen  v.  Lake  Erie  Tel.  Co.,  1  Am. 

L.   Reg.    (Ohio)    685. 


<§    552]  MEASURE  OF  DAMAGES.  529 

but  a  loss  may  be  sustained  by  the  message  misstating  the  place  to 
which  such  goods  are  to  be  shipped.  The  measure  of  damages,  in 
such  cases,  is  the  difference  between  the  price  of  the  goods  which 
could  have  been  obtained  at  the  place  to  which  they  would  have  been 
shipped,  had  it  not  been  for  the  error  made  in  the  telegram,  and  the 
market  value  or  best  obtainable  price  at  the  place  to  which  they  were 
actually  sent.-'*  He  should  also  be  allowed  to  recover  any  necessary 
extra  expenses  incurred  in  the  way  of  accomplishing  a  sale  at  the 
latter  place.  And  if  the  transportation  charges  to  this  place  were 
greater  than  those  to  the  place  they  were  ordered  to  be  sent,  the  dif- 
ference between  the  t^vo  should  be  recovered;  but  if,  on  the  other 
hand,  they  were  less,  then  this  difference  should  be  deducted  from  the 
total  amount  sustained  in  the  loss.  It  will  be  seen  by  this  that  the 
purpose  of  the  law,  where  the  company  only  negligently  discharged 
its  duty,  is  to  only  compensate  the  injured  party  for  his  loss;  where 
the  act  was  maliciously  done  to  injure  his  trade  or  business,  the  rule 
is  different. 

§  552.     Same  continued — stock,  bonds,  etc. 

We  have  been,  heretofore,  discussing  the  means  of  ascertaining  the 
amount  of  recoverable  damages  sustained  in  losses  caused  by  tele- 
graph companies  erroneously  transmitting  orders  for  goods.  Where 
the  order  is  not  for  commodities,  but  for  stocks,  bonds  and  other  like 
securities,  the  measure  of  damages  is  different,  yet  the  principle  on 
which  they  arc  founded  is  the  same.  The  cause  of  this  is  that  the 
nature  of  the  property  and  the  uses  to  which  it  may  be  put,  are  dif- 
ferent. If  an  order  for  stocks,  bonds  or  other  like  securities  has  been 
erroneously  transmitted,  the  measure  of  damages  is  the  loss,  if  any, 
sustained  by  the  purchaser  in  consequence  of  the  error  in  transmis- 
sion.-^ In  other  words,  if  the  order  is  changed  so  as  to  call  for  a 
kind  of  stock  other  than  that  ordered,  the  injured  party  may  recover 
the  difference  in  the  price  of  stock  it  was  desired  to  purchase,  at  the 
time  the  order  was  made,  and  the  price  to    which    it   had    advanced 

==^West.  U.  Tel.  Co.  v.  Reid,  83  Ga.  "West.   U.   Tel.   Co.   v.   Dubois,    128 

401;  We.st.  U.  Tel.  Co.  v.  Stevens,  16  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep. 
S.    W.    (Tex.)     1095.  109. 

T.  &  T.— 34 


530  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  ["^    552 

at  tlie  time  the  error  Avas  made,  also  the  amount  of  the  loss  on  the 
other  stock,-^  Where  there  is  a  profit  which  would  have  been  larger 
had  the  message  been  correctly  transmitted,  the  decrease  in  the 
profits  realized  may  be  recovered.  Thus,  where  an  order  for  1,000 
shares  of  certain  stock  was  changed  in  the  transmission  so  as  to  read 
100  shares,  and  before  the  error  was  discovered  the  stock  liad  ad- 
vanced, it  was  held  that  the  plaintiff  could  recover  the  amount  of 
the  advance  in  the  price  of  900  shares  up  to  the  time  he  became  aware 
of  the  error,  but  not  for  advances  occurring  thereafter.^" 

§  553.     Messages  directing  agent  to  sell  or  purchase. 

Where  a  person  directs  or  orders  his  agent,  by  means  of  a  tele- 
gram, to  sell  certain  property,  but  on  account  of  an  inexcusable  delay 
in  the  delivery  of  the  message  the  person  loses  by  a  decline  in  the 
price,  of  the  property,  the  measure  of  damages  is  the  difference  be- 
tween the  price  at  which  the  same  was  sold  and  that  which  he  would 
have  received,  had  it  not  been  for  the  delay.^^  In  such  cases,  how- 
ever, the  injured  party  must  exercise  reasonable  diligence  to  make 
the  loss  as  light  as  possible,  which  may  be  done  by  the  sending  of 
another  order  for  the  sale  as  soon  as  possible  after  he  learns  of  the 
delay.^^  One  difficulty  which  arises  under  cases  of  this  kind  is, 
whether  the  property  ordered  to  be  sold  was  ever  in  the  actual  pos- 
session of  the  sender  or  the  injured  party.  Many  transactions  for 
the  sale  or  purchase  of  property  is  carried  on  under  what  is  known 
as  "future"  sales  or  purchases ;  and  where  the  contract  of  sale  made 
by  telegram  is  for  the  sale  or  purchase  of  "'futures,"  loss  sustained 
by  a  message  in  respect  to  same,  being  either  negligently  transmitted 
or  delayed  in  delivery,  cannot  be  recovered  because  the  law  decrees 

=*  Eittenhouse     v.     Independent    Line  U.    Tel.    Co.,    115    Ind.    191;    West.    U. 

of  Tel.,  44  N.  Y.  263,  4  Am.  Rep.  673.  Tel.   Co.  v.   Littlejolin,  72  Miss.    1025, 

"Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  IS   So.  418;   West.  U.   Tel.   Co.  v.   Ste- 

529.  vens,   16  S.  W.    (Tex.)    1095. 

^  Dougherty   v.      American    U.      Tel.  -'"  Dougherty    v.     American     U.     Tel. 

Co.,  75  Ala.   168,  51  Am.  Rep.  435,   18  Co.,  75  Ala.   168,  51  Am.  Rep.  435,  18 

So.  419;  Hoeker  v.  West.  U.  Tel.  Co.,  8o.  419. 
34    So.    (Fla.)    901;    Hadley   v.    West. 


§    554]  MEASUKK   UF   DAMAGES.  531 

.such  contracts  illegal.  Before  a  legal  sale  can  Ixi  made  there  must 
be  in  one  j^arty  to  the  contract  possession  of  the  thing  to  be  sold, 
and  to  complete  same  the  party  must  be  able  to  deliver  the  same. 
There  cannot  be  a  sale  of  something  of  which  the  intended  seller  has 
not  possession,  mid  of  course,  if  he  cannot  deliver  that  which  he 
did  not  either  sell  or  have  to  sell,  there  cannot  be  a  sale.  Thus,  where 
it  appears  that  the  plaintiff's  agent  had  neither  money  nor  stock  in 
his  hands  belonging  to  the  former,  and  no  sale  or  purchase  was  made, 
although  the  agent  testified  that  he  would  have  loaned  plaintiff  the 
money  if  the  message  had  been  received  in  time,  and  although  the 
agent  of  the  company  was  familiar  with  the  nature  of  such  transac- 
tions, the  damages  sustained  by  a  decline  in  the  price  of  the  stock 
during  the  delay  of  the  message  are  too  remote  and  speculative.^*^  If 
possession  is  once  had  by  the  party  selling  purchases  and  sales  of 
stock,  it  matters  not  how  rapidly  and  often  made,  if  delivery  is  con- 
templated, is  not  dealing  in  ''futures,"  within  the  prohibition  of  the 
statutes.^  1 

§  554.     Same  continued — order  to  close  option  to  purchase. 

Where  a  person  has  an  option  to  inirchase  certain  property,  and 
a  message,  which  is  delivered  to  a  company,  containing  an  order  to 
his  agent  to  close  such  o])tion  is  delayed  through  the  negligence  of 
the  company  until  aftci-  the  expiration  of  the  time  within  which  the 
purchase  was  to  have  been  made,  the  measure  of  damages,  where 
there  is  a  loss,  is  the  difference  l3etween  the  price  fixed  by  the  option 
and  the  market  price  at  the  same  place  on  that  day.^-  If,  however, 
the  market  is  less  than  that  fixed  in  th(>  option,  and  this  is  greater 
than  the  amount  forfeited  l)y  the  failure  in  not  closing  the  option, 
there  can  be  no  recovery,  as  there  is  no  loss.  In  order  to  hold  the 
company  liable,  in  either  instance,  the  message  must  have  been  deliv- 
ered to  the  company  within  a  reasonable  time  before  the  closing  of  the 
option,  to  have  given  ample  time  for  its  delivery  to  the  agent,  and 
to  have  accomplished  its  ])urpose. 

^»  Cohen  v.   West.  U.  Tel.   Co.    (C.  C.  ^^  Brewster  v.   West.   U.  Tel.   Co.,   65 

A.),  48  Fed.  810,  affirming  46  Fed.  40.  Ark.    537,    47    S.    W.    560;    West.    U. 

^^  West.  U.  Tel.  Co.  v.  IJttlejohn.  72  Tel.  Co.  v.  Bell,  24  Tex.  Civ.  App.  572. 

Miss.  1025,  18  So.  413.  .59  S.  W.  918. 


532  TELKGRAPII   AND   TELEPHONE   COMPxS-NIES.  [<§,    555 

§  555.     Announcement  of  prices  or  state  of  market. 

It  is  the  general  rule,  as  stated  elsewhere,  that  where  the  owner  of 
certain  property  makes  an  offer,  in  response  to  the  announcement  of 
the  market  price  by  means  of  a  telegram,  to  sell  at  a  certain  price, 
and  the  message  has  been  changed  in  its  transmission  so  as  to  make 
the  price  less  than  that  offered,  the  sender  is  bound  to  the  receiver, 
who  purchases  the  property,  for  the  price  as  shown  in  the  message 
received.  The  owner  of  the  property  may,  however,  where  he  relies 
on  the  announcement  of  the  price  or  the  state  of  market,  as  received 
from  his  agent,  hold  the  company  liable  for  the  loss  he  has  sustained 
by  reason  of  the  misquoted  prices.  In  other  words,  if  he  receives  a 
message  from  his  agent  stating  the  price  at  which  the  property  can 
be  sold,  but  the  price  as  delivered  to  the  company  is  really  less  than 
that  quoted  in  the  received  message,  and  he  sells  on  the  strength  of 
the  latter  price,  believing  it  to  be  the  state  of  the  market,  he  may  re- 
cover for  the  loss ;  and  the  measure  of  damages  is  the  difference  be- 
tween the  price  the  property  actually  sold  for  and  that  which  he 
though  he  was  getting  for  it,  or,  as  stated  in  another  way,  the  amount 
of  his  actual  loss  caused  bj-  the  decrease  in  the  price  he  obtained.^^ 
It  is  held  in  these  cases  that  the  announcement  must  have  been  made 
in  contemplation  of  a  trade,  and  by  some  one  acting  with  authority 
to  make  such  announcement."^  If  the  party  to  whom  the  announce- 
ment is  made  should  be  the  purchaser,  the  measure  of  damages  would 
be  the  increase  in  the  price  he  was  obliged  to  pay  in  consequence  of 
the  error. '^^ 

§  556.     Contemplating  shipping — delay  in  message — loss. 

There  are  so  very  many  cases  arising  from  the  negligence  of  tele- 
graph companies  in  delaying  the  delivery  of  a  message  that  it  is 

'^West.  U.  Tel.  Co.  v.  Crawford,  110  Co.  v.  Riehman,  8  Atl.  171;  Pepper  v. 

Ala.    460,   20    So.    Ill;    West.   U.    Tel.  West.  U.  Tel.  Co.,  87  Tenn.  554,   11  S. 

Co,   V.   Flint    River   Lumber   Co.,      114  W.   783,   4   L.   R.   A.    (560,    10   Am.    St. 

Ga.  576,  40  S.  E.  815,  88  Am.  St.  Rep.  Rep.   699. 

36;   Postal  Tel.  Cable  Co.  v.  Schaefer,  =^  Frazer  v.   West.     U.  Tel.  Co.,     84 

62   S.  W.   1119,   23  Ky.   L.   Rep.   344;  Ala.  497,  4  So.  831. 

Reed   v.    West.    U.    Tel.    Co.,    135    Mo.  '^'West.    U.   Tel.   Co.   v.    Dubois,    128 

6G1,    37    S.   W.    904,   58   Am.    St.   Rep.  III.   248,    15   Am.    St.    Rep.    109,   21    N. 

609,   34  L.   R.  A.   492;    West.   U.   Tel.  E.  4. 


<^    55G]  MK.VSURE  OF  DA>rAGES.  r»33 

•lifficult  to  enmncnito  tlieni  all  and  to  give  the  measure  of  daiiiag<'S 
in  each  case.  He  who  contemplates  bringing  suit  should  ascertain 
from  the  cases  already  cited  the  measure  of  damages  to  be  recovered 
in  his  particular  case,  since  the  principle  in  all  is  the  same,  but  only 
differently  applied.  Thus,  if  a  party  who  contemplates  making  a 
shipment  of  live  stock  to  a  certain  place  on  the  announcement  of  tlie 
price  at  that  place,  but  in  consequence  of  a  delay  in  the  delivery  or 
non-delivery  of  the  price  he  ships  to  another  less  advantageous 
])oint,  the  measure  of  damages  would  be  similar  to  all  those  cases 
heretofore  discussed.  In  these  particular  cases  it  has  been  held  that 
the  measure  of  damages  would  l)e  the  difference  in  price  at  the  place 
he  actually  shipped  and  that  to  which  he  would  have  shipped  had  the 
message  been  delivered  in  time,  together  with  the  difference,  if  any, 
betAveen  the  transportation  to  the  two  places.^"  If,  on  the  other  hand, 
the  message  is  one  advising  the  owner  of  the  stock  not  to  ship  and, 
through  the  delay  in  the  message,  he  does  ship,  thereby  encountering 
an  unfavoral)le  market,  the  measure  of  damages  is  the  difference  be- 
tween the  price  of  the  stock  at  the  place  from  which  they  were  shipped 
and  the  price  at  the  place  to  which  they  were  shipped,  together  with 
expenses  in  transportation  and  that  accruing  in  the  sale.^'^  In  all 
cases  where  the  owmer  suffers  a  loss  by  the  negligence  of  these  com- 
panies, he  must  exercise  reasonable  diligence  to  reduce  his  loss  as 
much  as  possible.  Thus,  in  the  last  rule  given  above,  if  the  owner 
of  the  stock  cannot  sell  at  the  place  he  has  shipped,  it  his  duty,  if 
practicable,  to  ship  to  the  nearest  good  market  in  order  to  reduce 
his  loss.^^  He  need  only  exercise  reasonable  diligence  and  effort, 
and  is  not  under  obligation  to  seriously  incommode  himself  or  cause 
injurv  to  his  other  liusinoss  to  make  such  reduction.  If  the  message 
has  never  l)eeii  delivevcil.  and  the  addressee,  under  the  circumstances, 
believes  that  tliere  is  no  eliangc  in  the  niai'kci  and  Imys  accordingly 

^Wost.    r.    Tel.    ('(1.    V.    Collins,     45  .")(i    K:m.    7.!7.    44    P:tc.    08!i.      See    also 

Kan.  88,  10  L.  R.  A.  51.'),  25  Pac.  187;  West.   1'.  Tel.   Co.  v.  Reid,  83  Gix.  401. 

West.  U.  Tel.  Co.  v.  Stevens.  16  S.  W.  » West.   U.   Tel.     Co.   v.   Woods,     56 

1095;   Turner  v.  llawkeye  Tel.   Co..  41  Kan.  737.  44  Pac.  089.     Compare  Leon- 

Tcwa  458.  20  Am.  Rep.  605.  ard  v.  New  York.  etc..  Tel.  Co..   41   N. 

"West.    r.  Ttl.  Co.  V.   Linney.  28  S.  V.    544.    1    Am.    Rep.    44(i. 
W.   234:    West.    l".   Tel.    Co.   v.    Woods, 


534  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    556 

at  the  last  rates  coininiiiiieated  to  hiln,  he  may  recover  the  difference 
between  the  excessive  price  he  pays  for  the  property  and  the  price 
he  would  have  paid  had  the  message  been  delivered  in  time.^^  But 
if  he  should  get  the  same  information  the  delayed  message  would 
have  given,  from  other  sources  and  before  ho  buys,  he  cannot  recover 
anything.'*'* 

»» Garrett    v.    West.    U.    Tel.    Co.,    92  ^"Reynolds  v.   West.   U.   Tel.   Co.,   87 

Iowa  449,   58   N.    W.    1064,   60   N.   W.      Mo.  App.  223. 
644. 


CHAPTER  XXIII. 

MEASURE  OF  DAMAGES— CONTINUED— LOSS   OF 
EMPLOYMENT,  ETC. 

§  557.  In  general. 

558.  Loss  of  situation  or  employment. 

559.  Same  continued — actual  damages. 

560.  Same  continued — circumstances  tending  to  reduce  loss. 

561.  Loss  of  professional  fees. 

562.  Same  continued — losses  of  otherwise   professional   nature. 

563.  Same  continued — such  as  not  recoverable. 

564.  Losses  which  might  have  been  prevented. 

565.  Same  continued — must  show  same    would    have    been    pre- 

vented. 

566.  Failing  debtor — messages  from  creditors  regarding  same. 

567.  Failure  to  transmit  money. 

§  557.     In  general. 

The  failure  on  the  part  of  a  telegraph  company  to  properly  dis- 
charge its  duty  to^vards  the  public,  subjects  it  to  as  many  and  almost 
the  same  kind  of  actions  as  may  be  maintained  against  individuals 
for  their  wrongful  acts.  In  fact,  they  are  nothing  more  than  persons 
in  law,  so  considered  by  all  the  courts,  and,  with  certain  peculiar  ex- 
ceptions, their  duties  and  liabilities  tosvard  the  public  are  the  same. 
One  of  the  inalienable  rights  of  every  citizen  is  to  own  property  and 
to  make  and  enter  into  contracts  in  respect  thereto.  Any  interfer- 
ence by  another,  except  by  due  process  of  law,  whereby  he  is  pre- 
vented from  exercising  his  authority  over  such,  will  subject  the 
wrongdoer  to  damages.  These  companies  may  also  o^^^l  all  property 
necessary  for  them  to  carry  on  and  ]-)erform  those  objects  for  which 
they  were  incorporated.  They  may  make  and  perform  contracts, 
both  with  other  corporations,  and  with  individuals  with  respect  to 
such  projX'rty,  so  far  as  it  may  be  necessary  to  accomplish  their  cor- 
porate objects,  and  any  interference  in  these  contractual  rights  may 
bo  remedied  by  proper  actions.  We  propose  to  discuss  in  this  chap- 
ter, the  interference  with  contracts  made  or  in  contemplation  of  be- 
ing made  by  individuals,  or  such  as  may  have  been  prevented  from 
being  made  by  the  negligence  of  telegraph  companies.     And  first,  we 

(535) 


536  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    557 

shall  speak  of  the  loss  of  a  situation  or  employment,  which  is  the 
result  of  the  company's  negligence  in  delaying  a  message. 

§  558.     Loss  of  situation  or  employment. 

When  a  telegraph  company,  through  its  negligence,  delays  a  mes- 
sage resulting  in  a  loss  of  a  situation  or  employment,  it  is  not  such 
an  interference  with  the  making  of  a  contract  as  is  meant  when  some 
third  person  intentionally  interferes  with  the  contracting  parties  in 
the  making  of  a  contract,  and  for  which  an  action  in  tort  may  be 
maintained.  In  the  latter  cases,  the  gist  of  the  action  is  the  wrongful 
or  malicious  intent  on  the  part  of  the  wrongdoer;  in  the  former  it 
is  not  the  intent  which  the  company  may  have  that  makes  out  the 
case,  but  it  is  a  failure  to  discharge  its  duties  toward  the  public  and 
the  contracting  parties.  It  is  true  that  this  negligence  of  the  com- 
pany may  become  so  gross  as  to  place  them  under  the  same  class  of 
cases — that  is,  a  malicious  interference.  We  shall  not  speak  here 
of  the  wrongful  or  malicious  intent  which  may  have  been  entertained 
by  the  company  when  such  negligence  is  perpetrated,  but  only  of  its 
negligence  in  the  delay  of  the  message  and  the  results  thereof.  When 
a  contract  of  employment  or  for  a  situation  has  been  lost  by  the  de- 
lay of  a  message,  the  injured  party  is  surely  entitled  to  damages;  but 
the  question,  difficult  of  comprehension  is,  What  is  the  measure  of 
damages  in  such  cases  ? 

§  55&.     Same  continued — actual  damages. 

In  cases  where  the  plaintiff  loses  an  employment  in  consequence 
of  the  company's  negligent  delay  in  delivering  a  message,  the  amount 
of  damages  to  be  recovered  should  be  such  as  he  has  actually  sus- 
tained.^ It  is  not  an  easy  matter  to  always  ascertain  what  are  the 
actual  damages.  In  viewing  this  subject,  the  circumstances  involved 
must  be  considered;  the  character  of  the  employment;  the  ability 
of  the  plaintiff  to  perform  such  work;  and  the  duration  of  the  time 
he  is  to  be  engaged  are  matters  to  be  considered.-      And  he  should 

'West.   U.   Tel.   Co.   v.   Valentino,   18  ^  West.   U.   Tel.   Co.  v.   Hines  96  Ga. 

111.  App.  57;   West.  U.  Tel.  Co.  v.  Mc-  688,    23    S.    E.    845,    51    Am.    St.    Rep. 

Kibben,    114   Ind.     511:    McGregor     v.  159;    We.st.  U.   Tel.   Co.   v.   Feuton,   52 

West.  U.  Tel.  Co.,  85  Mo.  App.  308.  Ind.    1 ;    Kemp    v.    West.    U.    Tel.    Co., 


^    559]  MEASURE   OF  DAMAGES.  537 

prove  the  damages  he  has  actually  sustained  by  the  delay.  Thus,  if 
his  employment  is  for  a  certain  specified  time,  during  which  he  is 
to  obtain  a  certain  salai-y,  the  loss  of  this  is  the  amount  to  be  recov- 
ered ;  ^  unless  there  are  circumstances  which  would  reduce  this 
amount.  In  other  words,  if  he  is  employed  for  one  month  at  a  sal- 
ary of  $100,  and  his  board  for  that  time,  but  is  prevented  from  mak- 
ing this  through  the  negligence  of  the  company,  he  may  recover  this 
amount.  It  is  not  only  of  a  situation  or  an  employment  where  he 
may  have  a  right  to  recover;  but  if  he  has  been  prevented  fro^m  ac- 
cepting a  contract  to  build  a  certain  structure,  or  any  other  similar 
purpose,  he  may  recover  the  actual  loss  sustained  thereby.^  In  these 
latter  cases,  it  is  more  difficulty  to  ascertain  the  exact  damage  sus- 
tained. It  is  the  general  rule,  that  the  amount  to  be  recovered  is 
the  net  profit  he  would  have  made  by  performing  the  contract  had  he 
not  been  interfered  with  by  the  acts  of  the  company.  It  must  be  un- 
derstood that  the  gist  of  the  action,  in  such  cases,  is  not  the  in- 
terference with  the  contract  made  between  the  sender  and  the 
addressee  of  the  message  by  the  company's  negligence,  but  it  is  the 
company's  failure  to  carry  out  its  contract  made  with  one  of  these 
parties  in  respect  to  such  contract;  that  is,  to  act  as  agent  in  bring- 
ing the  minds  of  these  two  parties  together  with  reference  to  the 
contract  to  be  made  by  them  as  it  contracts  to  do  in  accepting  com- 
pensation for  the  deliverv-  of  the  message. 

2S   Neb.   661,   44   N.   W.    1064,  26  Am.  you,  if  you  can  come  at  once."       Plain- 

St.   Rep.    363,   30   Am.    St.    Rep.    607;  tiffs    answered,    "Will    ship    machinery 

Wolfskehl  V.   West.     U.   Tel.    Co.,     46  at  once."    This  latter  message  was  not 

Hun     (N.  Y.)    542.     See  also  Baldwin  delivered  and  the  parties  for  whom  the 

V.  West.  U.  etc.,  Tel.  Co.,  93  Ga.   692,  threshing  was  to  be  done,  not  knowing' 

21  S.  E.  12,  44  Am.  St.  Rep.  194.  Com-  that  the  offer  was   accepted,  employed 

pare  Jacobs  v.   West.   U.   Tel.   Co.,  76  other  contractors.    It    was     held    that 

Miss.  278,  24  So.  535.  the  company  was  liable,  although  there 

'Mondon    v.    West.    U.    Tol.    Co.,    96  was  no  delay  in  getting  the  machinery 

Ga.  499,  23  S.  E.  853.  to  V;   that  complainant,  being  able  to 

*West.   U.   Tel.    Co.   v.   Robinson,   29  show     the     amount     of     grain     to     be 

S.  W.  71;  West.  U.  Tel.  Co.  v.  Bowen,  thrashed  and  the  rate  of  toll  per  bush- 

84   Tex.    476.      In   this    case,   plaintiffs  cl  contracted  for,  the  damages  claimotl 

were   threshers   and   their   agent   at   X  could    not    be     considered     contingent, 

wired   them,   "Have   30,000  bushels   for  uncertain,  or  speculative. 


538  TELEGKAl'Il    AM)   TELEPHONE   COMPANIES.  [§    560 

§  560.     Same  continued — circumstances  tending  to  reduce  loss. 

1l  i&  the  general  rule,  where  a  i)ersoii  is  prevented  from  perfonn- 
ing-  or  cariying  out  a  contract,  and  where  he  has  not  been  guilty  of 
any  fault  on  his  part,  that  he  should  exercise  reasonable  diligence 
to  minimize  the  loss  as  much  as  possible ;  this  may  be  done  by  per- 
forming other  similar  contracts.  Thus,  where  he  has  lost  a  situa- 
tion or  employment,  it  is  the  duty  of  the  plaintiff  to  seek  other  em- 
ployment, by  means  of  which  the  loss  w'ould  naturally  be  reduced.^ 
But  if  he  has  a  certain  occupation  or  avocation,  he  need  not  seek  em- 
ployment in  other  lines  of  business."'  In  other  words,  if  he  is  a 
contractor,  he  need  not  endeavor  to  reduce  the  loss  sustained  by  the 
acts  of  the  company  by  engaging  to  farm  or  clerk,  or  any  business  out- 
side that  of  a  contractor.  It  is  not  necessary,  in  any  particular,  that 
he  should  exercise  every  endeavor  to  obtain  other  similar  employ- 
ment, but  it  is  only  his  duty  to  exert  reasonable  diligence.  If  he 
has  obtained  other  employment,  the  measure  of  damages  for  the  loss 
sustained  by  a  failure  to  perform  the  first  is  the  difference  between 
what  he  would  have  made  had  the  message  been  delivered  in  time  and 
the  amount  received  in  the  latter  employment.  If,  on  the  other 
hand,  he  has  been  unable  to  get  other  employment,  he  should  recover 
all  the  los«  actually  sustained  by  a  failure  to  perform  caused  by  the 
delay  of  the  message.  Thas  is,  all  that  would  have  been  made  from 
the  time  the  contract  was  made  and  the  time  it  would  have  expired ; 
and  he  should  not  be  allowed  to  recover  such  claim  as  might  likely 
accrue  after  the  filing  of  the  suit.'^ 

§  561.     Loss  of  professional  fees. 

The   same   rule,    whicli   has  just  been   discussed,   applies  to   cases 
where  a  professional  fee  has  been  lost  by  a  negligent  delay  in  a  mes- 

'  Moody   V.   Leverieh,      14   Abb.      Pr.  eniploynicnt.      West.    U.      Tel.    Co.      v. 

( U.    S.)     154;    Worth   v.   Edmonds,    52  The  burden  is  on  the  company  to  show 

Barb.   42;   Gillis  v.   Space,   63   Id.   182.  that    the    plaintiff    could    obtain    other 

'Perry   v.    Dickerson,    7    Abb.    N.    C.  Brown,    37    So.     (Ala.)     493.      It    is    a 

471;   Strause  v.  Miertief,  G4  Ala.  308;  question  for  the  jury  as  to  whether  a 

Taylor   v.    Bradley,    4    Abb.   App.    Dec.  contract  had  been  made.      Id. 

377;   s.  c.  39  N.  Y.   141;  Tufts  v.  Ply-  ^  Uline   v.    New   York   Cent.,   etc.,   R. 

mouth   Gold    M.    Co.,    14   Allen,      413;  Co.,   101    N.   Y.   08,  54  Am.   Rep.   661; 

Co.stigan  v.  Mohawk  &  H.  R.  R.  Co.,  2  \Vest.    \\    'Id.    Co.    v.    McKibbon,    114 

Denio    (N.   Y.)    609,  43  Am.  Dec.   758.  Ind.  511. 


<^    561]  MEASUKK   (»F    IJAMAGKS. 


539 


sao'c.     Thus  wlicrc  ;i  mc-saiic  siiiiiiiinniiiii-  a  |)iiy.siciaii  to  visit  a  mem- 
Ikt  of  the  family  who  is  sick,  or  wIktc  it  is  u  request  for  an  attor- 
ney to  attend  a  case,  and  tlie  message  is  negligently  delayed  whereby 
the  fees  for  such  services    are  lost,    tiic    actual    damages    sustained 
thereby  should  be  recovered.      It  is  \'ery  often  the  case,  that  profes- 
sional men  have  been  deprived  of  fees  they  otherwise  would  have  ob- 
tained had  it  not  been  for  the  company's  negligence;  and  the  meas- 
ure of  danniges,  in  such  cases,  is  the  amount  of  fees  they  would  have 
received,  less  the  amount  of  fees  made  while  not  fulfilling  such  en- 
iragement,  and  also  the  extra  expenses  which  necessarily  would  have 
been  incurred  had  the  services    been    rendered.'^       Thus,    in    a    case 
where  a  message  was  delayed  summoning  a  physician  to  make  a  visit, 
it  was  shown  that  he  would  have  made  $500  had  the  message  been 
delivered  in  time  and  the  visit  made.       The    court    held    that    this 
amount  was  recoverable,  less  other  fees  made  during  the  time  he 
would  have  been  gone.     We  think  that  railroad  and  other  similar  ex- 
penses incurred  in  making  the  trip,  should  also  be  deducted  from 
the  amount  of  fees  which  would  have  been  made.^      In  any  of  these 
cases,  the  company  must  have  had  some  information  of  the  charac- 
ter and  purpose  of  the  message,  in  order  to  have  been  liable.      In 
these,  as  in  all  other  cases  heretofore  discussed,  all  the  damages  may 
be  recovered  which  entered  into  the    contemplation    of    the    parties' 
minds,  at  the  time  the  contract  of  sending  was  inade,  as  would  be 
the  natural  and  probable  results  of  a  breach  of  such  contract;  and. 
unless  the  company  should  have  had  some  information  of  the  pur- 
pose of  the  message,  such  contemplation  could  not  have  been  enter- 
tained by  it.i*^ 

*\Vest.   r.   Tel.   Co.   v.   McLaurin.' 70  party   at    W".   tclofiraphed  to  his  attor- 

Miss.   2G.    13   S(i.   3(1    (Attorney's  fee)  ;  iiey   to   nifct    liini   there   to   arrange  an 

Fairley  v.  West.  U.  Tel.   Co..  73  Miss.  assignment.     The  attorney  replied  that 

Ci.    18    So.    796    (loss   of    fee    to    physi-  he   would   come   at   onee,  but   this   lat- 

cian).     See  also  ilood  v.  West.  U.  Tel.  ter   message   was      not   delivered,     and 

Co..  40  S.  Car.  524;  West.  U.  Tel.  Co.  the  party  secured  a  local  attorney  and 

V,    Longwill,    .')    X.    Mex.    308.   21    Pac.  plaintiflF    lost    the    expected    fee.      The 

339_  only   information   the   company   had   of 

"West.  r.  Tel.  Co.  v.   l,0M.<:\\ill.  ;">  N.  the   circumstances   was   from   the   raes- 

Mex.  308,  21   Pac.  330.  sage    which    read,     "Sent     Eckford     on 

''West.    U.    Tel.    Co.    v.    (  lifton.    68  first  train.     Am  here.     Answer."  and  a 

Miss.   307,   8   So.   74ti.      In    lUU  vii-o.   a  njily  to  the  ctlVct  tluit  E.  would  come 


540  TELEGHAPII    .VXD   TELEPIIO.X  K    CU-MPAXIES.  [§    562 

§  562.     Same  continued — losses  of  otherwise  professional  nature. 

While  j)f(i|)k',  carrviiig  on  a  business  of  a  special  and  particular  na- 
ture, do  not,  strictly  speaking,  fall  in  the  class  of  professional  men, 
jet  their  business,  being  somewhat  similar,  the  above  rule  may,  how- 
ever be  applied  to  them.  Thus,  where  a  person  is  acting  in  the  capacity 
of  a  detective,  and  is  trying  to  capture  a  criminal,  for  whose  capture 
there  is  a  reward,  he  may  recover  of  the  company  an  amount  of  dam- 
ages equal  to  the  reward  offered,  when  he  has  been  prevented  from 
making  such  capture  by  the  company's  negligence  in  delaying  a  mes- 
sage containing  facts  of  his  whereabouts.^^  Where  a  real  estate  agent 
has  failed  to  make  his  commission  in  a  sale  of  real  estate  by  reason 
of  the  message  being  negligently  delayed,  the  commission  may  be 
recovered.^-  It  was  held  in  one  case,  that  the  fact  of  the  non-delivery 
of  a  message  in  time  to  enable  the  party  to  whom  it  was  sent  to  meet 
a  train  and  comply  with  the  directions  of  the  sender,  does  not  cause 
the  former  party  to  suffer  any  damage ;  but  simply  to  lose  a  mere 
opportunity  or  possibility  to  make  some  money,  and  the  company 
therefore,  is  not  liable  to  him  in  damages  for  such  non-delivery.-'^ 
This  opinion  is  contrary  to  the  general  rule  under  such  cases.  In 
this  case,  the  telegram  was  a.  request  to  an  undertaker  to  meet  the 
remains  of  a  certain  person  at  the  depot  and  convey  same  to  another 
place.  As  said  by  the  court,  in  this  case :  "It  is  contended  that  if 
he  had  received  the  telegram,  he  would  have  made  a  considerable 
amount  of  money  as  profits  from  services  rendered.  He  might  have 
made  it,  or  he  might  have  not."  In  other  words,  it  w^as  claimed  that 
the  sender  of  the  message  might  have  "declined  the  services"  on  ar- 
rival with  the  remains,  and  for  this  reason  the  damages  were  too 
remote.  With  all  due  respect  to  this  learned  court,  we  do  not  agree 
with  it  in  this  holding.      The  fact  of  the  sender's  not  accepting  the 

at   once.     It  was   held   that   only  noisi-  ^'  McPeek  v.   West.   U.   Tel.    Co.,    107 

inal  damages  could  be  recovered.     See  Iowa  356,  70  Am.  St.  Rep.  205,  43  L. 

Melson  v.   West.   U.    Tel.   Co.,   72   Mo.  L".  A.  214,  78  N.  W.  0.3. 

App.  111.     Extrinsic  evidence  is  admis-  ''West.   U.   Tel.   Co.    v.    Fatman,   7-' 

sible  to  show  that  the  company  had  no-  Ga.   285,   54   Am.   Rep.   877;    West.   I". 

tice   of   the      importance:    McPeek      v.  Tel.    Co.   v.   Cook,   54   Xeb.    109,   74   X. 

West.   U.   Tel.   Co.,    107    Iowa   356,   70  W.  395. 

Am.  St.  Rep.  205,  78  N.  W.  63,  43  I..  '''Clay  v.   West.   U.   Tel.   Co.,   81   Ga. 

R.  A.  214.  285,    12    Am.   St.   Rep.    316. 


§    564]  MEASURE   OF  DAMAGES.  541 

services  of  the  addressee  does  not  enter  into  the  contemplation  of 
the  interested  parties  to  the  contract  at  the  time  it  was  made ;  that 
is,  it  does  not  enter  into  the  contemplation  of  the  addressee's  mind, 
for  whose  benefit  the  contract  was  made,  that  there  would  be  an  ac- 
ceptance or  non-acceptance  of  his  services ;  neither  was  this  enter- 
tained by  the  sender.  That  which  does  enter  into  liis  contemplation 
— and  presumed  to  have  been  entertained  at  the  same  time  by  the 
company — is  the  loss  of  charges  for  such  services,  in  case  there  is 
a  delay;  and  this  may  be  recovered. 

§  563.     Same  continued — such  as  not  recoverable. 

There  may  be- a  number  of  instances,  however,  when  the  damages 
claimed  may  be  too  remote  or  speculative ;  or,  rather,  such  as  would 
give  them  the  same  effect.  Thus,  if  the  employment  is  conjectural  or 
contingent,  so  that  the  delivery  of  the  message  might  or  might  not 
have  secured  the  employment  or  services  for  the  plaintiff,  he  can 
not  recover.^^  So,  it  has  been  held  that  the  faihu'e  to  secure  a  posi- 
tion, as  deputy  assessor,  is  not  a  ground  for  the  recovery  of  more 
than  nominal  damages,  where  it  appears  that  the  deputy  holds  only 
at  the  pleasure  of  the  officer  appointing  him.^^  If  the  plaintiff  could 
not  have  rendered  his  assistance  by  reason  of  being  employed  in  other 
services,  he  cannot  recover  on  the  first,  although  the  message  was 
negligently  delayed;^''  or,  if  the  services  could  not  have  been  ren- 
dered on  account  of  other  circumstances,  had  it  been  delivered  in  due 
time,  he  cannot  recover.  Thus,  if  his  services  are  required  some 
distance  from  his  home,  which  necessitates  him  to  go  by  railroad,  and 
no  train  leaves  for  that  place  so  that  he  can  reach  this  place  in  time 
for  his  services  to  be  rendered,  he  cannot  recover,  if  the  message  was 
delayed,  when  the  same  would  have  been  the  result  had  it  not  been 
delayed. 

§  564.     Losses  which  might  have  been  prevented. 

The  statutes  in  many  states  have  classed  telegraph  companies  un- 
der the  head  of  common  carriers,  and  yet,  irrespective  of  this  fact, 

'MValsor   v.    \\'ost.    U.    Tol.    Co..    114  '"Freeman   v.    West.   U.   Tel.   Co..   93 

N.  C.  440,  19  S.  E.  366.  (;a.  230,   18  S.   R.  047. 

"Kenyon   v.   West.   U.   Tel.   Co..    100 
Cal.  454,   35  Pac.   75. 


542  TELEGKAPII   AiSD   TELEPHONE    COMPANIES.  [§    56i 

tlieii"  duties  and  obligations  toward  the  public  are  somewhat  simi- 
lar to  the  former.  It  is  only  the  nature  of  their  employment  that 
makes  them  different.  One  engages  itself  to  transmit  news,  and 
the  other  to  transport  property.  The  one  has  under  its  control  prop- 
erty which  is  invisible,  while  the  other  is  entrusted  with  visible  and 
tangible  property.  For  this  reason  it  is  more  difficult  for  one  to 
safely  accomplish  its  duties  than  the  other.  It  is  for  this  that  one 
is  considered  under  the  common  law  as  being  an  insurer,  while  the 
other  is  acting  in  a  quasi-insuring  capacity,  but  with  respect  to  their 
negligence  they  are  equally  liable.  A  common  carrier  engages  to 
transport  proj^erty  in  its  tangible  state  from  one  place  to  another,  and 
on  a  failure,  through  its  negligence,  so  to  do,  it  will  be  liable  for  all 
the  natural  and  proximate  results  which  could  have  been  prevented. 
In  other  words,  if  a  loss  in  the  transportation  of  goods  has  been  sus- 
tained, which  could  have  been  prevented  by  the  injured  party  had 
the  carrier  i)roperly  discharged  its  duty,  it  will  be  liable.  The  same 
rule  will  apply  to  telegraph  companies.  For  instance,  if  a  loss  has 
been  sustained  by  reason  of  a  message  being  negligently  sent  or  de- 
livered, and  the  same  could  have  been  prevented  by  the  plaintiff,  or 
injured  party,  had  the  company  properly  discharged  its  duty  with 
respect  to  such  message,  it  will  be  liable  for  all  the  natural  and  direct 
consequences  arising  from  such  failure  of  duty.^'^  Thus,  where  the 
company's  negligence  prevents  plaintiff  from  stopping  a  sale  of  his 
property  under  foreclosure,  he  is  not  bound,  in  order  to  recover  dam- 
ages, to  show  that  he  has  been  ejected  from  the  property;  the  loss 
of  his  title  is  enough.  But  he  must  be  able  to  show  tliat,  liad  the 
message  been  duly  delivered,  he  would  have  been  able  to  command 
the  money  necessary  to  stop  the  sale.^^ 

§  565.     Same  continued — must  show  same  would  have  been  pre- 
vented. 

In  order  to  recover  under  the  above  rule,  it  must  be  shown,  in  every 
case,  that  tbere  has  been  a  loss  sustained  by  the  company's  negligence, 

"Bodkin    v.    West.    U.    To].    Co..    31  GO    S.    C.    201,    38    S.     E.     443;     West. 

Fed.  134;   West.  U.  Tel.  Co.  v.  McCor-  U.    Tel.    Co.    v.    Shumate,    2    Tex.    Civ. 

miek,   27    So.    (Miss.)    606;    Wolfskehl  App.   429,   21    S.   W.    109. 

V.  West.  U.  Tel.  Co.,  46  Hun    (N.  Y.)  'MVest.  U.  Tel.  Co.  v.  Hearul,  7  Tex 

542;  Wallingford  v.  West.  U.  Tel.  Co.,  Civ.   App.    67. 


<^    506]  MEASURE   OF   DAMAGES.  543 

and  that  the  same  (-(nild  ;iii<l  would  have  been  prevented.^''  Thus, 
where  the  action  is  iur  a  lailunt  to  deliver  a  message  summoning  a 
physician  to  visit  ])hiiiitiflf's  wife,  damages  cannot  be  recovered  for 
the  loss  of  her  services,  unless  it  is  shown  thai  r.  ]irompt  deliverv  of 
the  message  and  the  arrival  of  the  physician  would  have  saved  her 
life.-'^  In  such  cases,  it  is  a  question  for  the  jury  to  say  as  to  whether 
or  not  the  patient,  to  whom  he  was  summoned,  was  injured  by  the 
delay,  and  whether  the  result  would  have  been  different  had  the  dis- 
patch been  delivered.^^  A  case  somewhat  similar  to  this  is,  where 
the  father  was  unable,  by  a  negligent  delay  of  a  message,  to  prevent 
the  marriage  of  his  minor  child.  In  this  case  he  was  allowed  to  re- 
cover the  amount  of  the  child's  services  from  the  time  of  the  mar- 
riage until  it  should  have  reached  its  majority."^  The  gist  of  the 
action,  in  these  cases,  is  the  loss  of  services,  and  it  must  be  shown 
that  there  was  a  loss  in  this  respect,  and  that  the  same  not  only  could 
but  would  have  been  prevented,  had  the  company  not  been  guilty  of 
negligt^nce.  So,  if  the  plaintiff  is  deprived  of  the  services  of  the 
person  for  whom  he  sues,  no  recovery  can  be  had  so  long  as  that 
state  of  affairs  exists.  Where  there  is  a  loss  of  any  nature,  sus- 
tained by  the  negligent  act  of  the  company,  the  injured  person  may 
recover  for  same  if  he  can  show  that  it  would  have  been  prevented 
in  the  absc^ice  of  such  negligence.  For  instance,  where  a  message 
from  a  sister  to  a  brother  reading:  "Mother  started  to-night,"  was 
changed  in  its  transmission  so  as  to  read,  "Mother  died  to-night." 
It  was  held  that  the  brother  could  recover  for  all  the  expense  he  was 
put  to  in  pr('])aring  for  the  funeral,  including  flowers  liought  for  said 
occasion.-"' 

§  566.     Failing  debtors — messages  from  creditors  regarding  same. 

Cases  similar  to  those  discussed  in  the  preceding  section  have  been 
instituted  where  messages  have  been  sent  by  creditors  to  their  agents 

'•West.   r.   Tel.   Co.   v.   Cornwell,     2  =»  West.   U.  Tel.  Co.  v.   Kendzora.   77 

Colo.  App.  401;    West.  U.  Tel.  Co.  v.  Tex.  257,  13  S.  W.  986. 

Norton,  62   S.  W.    (Tex.)    1081;   West.  =' Brown    v.    West.    U.      Tel.    Co..      6 

U.  Tel.   Co.   V.   Patton,  55   S.   W.   973;  Utah  21!t.  21   Pac.  918. 

Cutis  V.  West.  U.  Tel.  Co.,  71  Wis.  46,  "West.  U.  Tel.  Co.  v.  Proctor.  6  Tp\. 

36   N.    W.    627;    Giddens    v.    West.    U.  Civ.   App.   300.   25    S.   W.   811. 

Tel.  Co.,  Ill  Oa.  824,  35  S.  E.  632.  =MVest.  U.  Tel.  Co.  v.  Hincs.  22  Tex. 

Civ.  App.  315,  54  S.  W.  627. 


544  TET.EGRAPH   AND    TELEPHONE    COMPANIES.  [<§    56(i 

in  regard  to  failing  debtors,  but  for  the  reason  that  tbey  were  negli- 
gently delayed  by  the  company,  they  failed  to  accomplish  their  de- 
sired purposes.  In  these,  the  creditors  were  allowed  to  recover  the 
loss  which  could  and  would  have  been  prevented  but  for  the  com- 
pany's negligence.-'^  Thus,  where  a  creditor  telegraphed  his  atttor- 
ney  of  the  failing  circumstances  of  his  debtor,  with  the  instruction 
to  attach  his  property,  but  on  account  of  the  delay  in  the  delivery 
of  the  message  to  the  attorney  he  failed  to  attach  until  four  days 
after  the  time  the  message  should  have  been  delivered,  and,  in  the 
meantime,  the  debtor's  property  was  fully  covered  by  other  attach- 
ments, the  company  will  be  liable  for  the  loss  of  the  debt.-^  If  the 
message  was  delivered  on  time,  but  was  altered  in  its  transmission 
so  as  to  show  that  the  claim  was  less  than  it  really  was,  the  difference 
in  the  actual  debt  and  that  as  shown  in  the  message  may  be  recov- 
ered, if  this  amount  has  been  lost  by  other  creditors  having  attached 
all  of  his  other  property.^®  In  either  case,  it  must  be  shown  that  the 
loss  was  the  result  of  the  company's  negligence,  and  but  for  this  the 
loss  could  and  would  have  been  prevented.^'^  For  instance,  an  at- 
torney, who  was  representing  the  plaintiff  in  a  certiorari  proceeding, 
sent  a  message  containing  notice  of  hearing.  On  account  of  the  mes- 
sage not  being  delivered  in  time,  the  proceedings  were  dismissed  for 
want  of  notice,  and  the  attorney  thereupon  paid  his  client  the  amount 
involved  in  the  suit  and  instituted  suit  to  recover  damages  of  the 
company.      It  was  held  that  he  could  not  recover  in  the  absence  of 

^*  Pacific  Tel.   Cable   Co.   v.   Fleischer  egram   and   the   debtor  would   have   se- 

(C.  C.  A.)   66  Fed.  899;  Parks  v.  Alta  cured  the  claim. 

California  Tel.  Co.,  13  Cal.  422,  73  =«  West.  U.  Tel.  Co.  v.  Beals,  56  Neb. 
Am.  Dec.  589;  Bierhaus  v.  West.  U.  415,  76  N.  W.  903,  71  Am.  St.  Rep. 
Tel.  Co.,  8  Ind.  App.  246;  Bryant  v.  682.  In  this  case  the  message  as  de- 
American  Tel.  Co.,  1  Daly  (N.  Y.)  livered  to  the  company,  read,  "Attach 
575;  West.  U.  Tel.  Co.  v.  Sheffield,  71  property  of  A.  for  seven  hundred  and 
Tex.  570,  10  S.  W.  752,  10  Am.  St.  ninety  dollars"  and  as  received,  read, 
Rep.  790;  West.  U.  Tel.  Co.  v.  Wof-  "Attach  property  of  A.  for  even  hun- 
ford,  42  S.  W.    (Tex.)    119.  dred   and  ninety   dollars." 

^Harstein  v.   West.   U.   Tel.   Co..   89  =^Herstein  v.   West.   U.   Tel.   Co.,   89 

Wis.  531,  62  N.  W.  412.     In  this  case  Wis.  531,  62  N.  W.  412;  West.  U.  Tel. 

it  was  held  that  the  loss  of  the  debt  Co.   v.   Bailey,   115  Ga.   725,  42   S.   E. 

was    too    remote    where    there    was    no  89;   Martin     v.   Sunset     Tel.   Co.,     18 

proof    that    the    plaintiff    would    have  Wash.  260;   West.  U.  Tel.  Co.  v.  Gid- 

left  immediately  on  receipt  of  the  tel-  oumb,  28   S.  •  W.    (Tex.)    699. 


<§,    oGT]  MEASURE   OF   DAMAGES.  545 

l)roof  that  he  would  have  succeeded  in  the  proceeding  had  it  not  been 
for  the  negligence  of  the  company.-^  In  another  case,  where  tlie  com- 
pany's agent,  in  order  to  save  himself  and  others,  willfully  with- 
liolds  a  message  to  a  branch  bank  announcing  the  failure  of  its  princi- 
pal until  sometime  after  the  bank  has  opened,  the  company  is  liable 
for  all  the  money  paid  out  by  the  bank  between  the  time  when  the 
message  should  haye  been  deliyered  and  the  time  when  it  was  actually 
delivered.^^ 

§  567.     Failure  to  transmit  money. 

It  has  become  a  very  common  thing  f(»r  money  to  be  transmitted 
by  telegraph  companies ;  or,  rather,  means  arc  furnished  by  which 
the  same  results  are  accomplished.  When  such  undertakings  have 
been  assumed,  it  is  as  much  the  duty  to  make  speedy  transmission  of 
the  money,  or  accomplish  the  same  results,  as  it  is  to  transmit  mes- 
sages pertaining  to  other  business.  So,  where  they  are  employed 
to  transmit  money  and  there  is  a  failure  to  do  so,  or  there  is  an  un- 
reasonable delay  in  delivery,  the  company  will  1^  liable  to  the  party 
to  whom  the  money  was  sent  for  the  actual  damages  sustained 
thereby.  The  measure  of  damages  in  such  cases  is  the  interest  on  the 
money  from  the  time  it  should  have  been  delivered  to  the  time  it  was 
actually  delivered,  together  with  the  cost  of  the  message.^"  Any  loss 
other  than  this  would  be  too  remote.^  ^  Thus,  where  the  plaintiff 
sues  for  being  put  out  of  his  house  and  thereby  injured  in  his  repu- 
tation, on  account  of  the  delay  of  the  company  in  transmitting  money 
sent  to  him,  it  was  held  that  the  damages  were  too  remote.^-  In  or- 
der to  stop  the  running  of  interest,  the  company  must  tender  to  the 
injured  person  the  money  sent,  and  not  merely  a  check  for  same.^^ 

==«West.    U.    Tel.    Co.    v.    Bailor.    115  Co.   v.   r.nr-icss,   ,5G   S.   W.    (Tex.)    237. 

Ga.    725,    42    S.    E.    89.  00   Id.    102.S. 

=»  Stiles  V.  West.  U.  Tel.  Co..  15  Pac.  =»  Stansell   v.   West.    V.  Tel.   Co..    107 

(Ariz.)    712.  Fed.  GG8. 

'"Robinson  v.   West.   U.  Tel.   Co.,   GS  '=  Stansell  v.   West.   U.  Tel.   Co.,   107 

S.  W.  656,  24  Ky.  L.  Rep.  452;   Smith  Fed.  6G8 :  West.  U.  Tel.  Co.  v.  Simpson. 

V.   West.  U.  Tel.' Co.,   150  Pa.   St.  561.  G4  Kan.   300.  67   Pac.   830. 

24   Atl.   1040.     Compare   West.   U.  Tel.  "Robinson    v.   West.   U.   Tel.   Co..   68 


S.  W.   G5G,  24   Ky.  L.  Rep.  452. 


T.  &   T.— 35 


CHAPTER  XXIV. 

DAMAGES   CONTINUED— FOR    MENTAL   ANGUISH. 

§  568.  In  general. 

569.  Same  continued — subject  divided. 

570.  Damages  for  mental  anguish  and  suffering. 

571.  Action  in  contract  or  tort — rule  the  same. 

572.  Rule  departed  from. 

573.  Same  continued — So  Relle  Case  overruled  and  reinstated. 

574.  Federal  court  view — how  held. 

575.  Ground  upon  which  these  cases  are  maintained. 

576.  View  of  subject  in  Louisiana. 

577.  Instances  in  which  damages  are  allowed. 

578.  Limitation  of  rule. 

579.  Same  continued — suffering  must  be  real. 

580.  Same  continued — must  be  the  result  of  the  cause  of  com- 

plaint. 

581.  Same  continued — suffering  must  be  of  the  plaintiff. 

582.  Same  continued — anguish  from   independent   causes. 

583.  Same  continued — must  have  prevented  the  injury. 

584.  Same  continued — postponement  of  funeral    services. 

585.  Same  continued — failure  to  transmit  money — no  cause. 

586.  Evidence  of  mental  suffering. 

587.  Same  continued — aggravation  of  suffering. 

588.  Same  continued — sickness  as  a  result — admissible. 

589.  Same  continued — matters  of  defense — want  of  affection. 
.590.  Relationship  material. 

591.  Nature  of  damages. 

592.  Actions  do  not  survive — limitation. 

593.  Damages  for  mental  suffering — doctrine  denied. 

594.  When  may  be  basis  of  action — malicious  or  willful  wrong. 

595.  Reasons  for  not  allowing  such  damages. 

596.  Same  continued — other  reasons — nominal  damages. 

597.  Same  continued — mental  suffering  following  physical  pain. 

598.  Conflict  of  law — with  respect  to  mental  damages. 

599.  Rule  declared  by  statutes. 

§  568.     In  general. 

There  is  no  sii})ject  which  has  k'cn  so  thoroughly  discussed,  and 
upon  which  there  has  been  so  many  inequitable  decisions  rendered, 
as  in  cases  against  telegraph  companies  brought  to  recover  damages 
for  mental  injuries,  in  consequence  of  their  negligence  in  transmit- 
ting or  delivering  messages.       There  arc  innumerable  instances  b\ 

(546) 


<^    570  I  MEASUUE    OF    DAMAGES.  547 

whicli  these  companies  should  suffer  the  results  of  their  negligent 
acts;  however,  there  are  many  cases  brought  against  them  in  which 
they  are  unmercifully  and  unjustly  dealt  with.  Among  these  are 
most  often  to  be  found  suits  brought  to  recover  damages  for  mental 
anguish.  While  corporations  of  all  kinds  are  very  grasping,  and  arc 
becoming  too  much  of  a  monopoly,  yet  there  is  no  doubt  but  that 
they  have  been  very  instrumental  in  the  upbuilding  and  the  progress 
of  our  country.  Where  works  of  enterprise  were  too  great  or  too 
liazardous  for  one  man  to  undertake,  the  same  have  been  most  hap- 
pily carried  out  and  performed  by  a  number  of  individuals,  incorpo- 
rated into  one  body  and  operating  under  the  powers  of  corporations. 
Because  of  the  fact  that  they  are  bodies  politic,  and  generally  repre- 
sentatives of  wealth,  the  majority  of  the  people  seem  prejudiced 
against  them ;  and  Avhenever  there  is  an  opportunity  given  it  seems 
difficult  to  do  them  the  same  justice  as  is  done  to  individuals.  It 
may  seem,  that  these  remarks  are  unnecessary;  but,  as  is  said  above, 
those  companies  are  often  unjustly  dealth  with,  not  by  the  courts  or 
those  people  learned  in  the  law,  but  by  those  who  sit  upon  the  juries 
ill  deciding  cases,  and  there  is  no  time,  it  seems,  when  such  favorable 
opportunities  present  themselves  as  in  those  cases  which  we  propose 
to  discuss  in  this  chapter. 

§  569.     Same  continued — subject  divided. 

On  account  of  the  importance  and  the  peculiar  nature  of  the  sub- 
ject of  mental  injuries,  and  the  manner  in  which  these  are  ascer- 
tained and  compensated  for,  the  closest  study  and  reasoning  are  re- 
quired. Therefore,  because  of  its  importance,  we  shall  discuss  in 
this  chapter,  mental  suffering  and  anguish  as  it  stands  alone,  discon- 
nected from  other  injuries ;  how  it  was  considered  under  the  common 
law;  the  changes  made  by  later  decisions  and  statutes.  Then,  we 
shall  disfuss  it  when  connected  with  other  injuries. 

§  570.     Damages  for  mental  anguish  and  suffering. 

Until  a  comparatively  recent  date,  it  was  held,  both  by  the  English 
and  American  courts,  that  damages  could  not  be  recovered  for  men- 
tal anguish  and  suffering  alone,  unaccompanied  by  pecuniar^-  dam- 
ages or  physical  injury,  although  it  may  have  been  the  proximate 
result  of  negligence  on  the  part  of  the  wrongdoer.     This  subject  was 


54S  TELEGKAPII    AXD    TELEPIIOXE    COMPANIES.  [§    570 

early  considered  by  the  English  authorities,  and  it  was  there  unan- 
imously held,  that  the  injuries  were  not  sufficient  to  sustain  a  suit.^ 
"Mental  pain  and  anxiety/'  as  said  in  an  early  opinion  on  this  sub- 
ject, "the  law  cannot  value,  and  does  not  pretend  to  redress,  when  the 
unlawful  act  complained  of  causes  that  alone ;  though  where  material 
damage  occurs,  and  is  connected  with  it,  it  is  impossible  that  a  jury, 
in  estimating  it,  should  altogether  overlook  the  feelings  of  the  party 
interested."  -  It  might  be  considered  in  some  cases  as  an  aggrava- 
tion of  damages.  For  instance,  in  assault  and  battery  and  seduction 
cases,  damages  could  only  be  recovered  for  the  loss  of  services,  but 
it  was  held  that  the  mental  suffering  could  be  considered  as  an  as- 
gravation  of  damages  to  be  recovered.  These  early  English  decis- 
ions have  been,  and  are,  with  few^  exceptions,  followed  by  all  the 
courts  of  our  country.  There  was  but  one  class  of  cases — later  fol- 
lowed by  another — where  damages  could  be  recovered  for  mental  suf- 
fering unaccompanied  by  other  injuries,  and  that  was  for  a  breach 
of  contract  of  marriage.  In  these  latter  cases,  the  jury  was  allowed 
to  take  into  consideration  "the  injury  to  the  jDlaintiff's  feelings,  af- 
fections and  wounded  pride,  and  the  j^ain  and  mortification  result- 
ing from  the  breach  of  contract,"  and  award  damages  therefor.^  In 
cases  of  .willful  w-rong — especially  those  affecting  the  liberty,  char- 
acter, reputation,  personal  security  or  domestic  relations  of  the  in- 
jured party — injuries  to  the  feelings  were  sufficient  grounds  to  main- 
tain an  action  thereon.'* 

§  571.     Action  in  contract  or  tort — rule  the  same. 

Where  the  action   is  to  recover  damages  for  mental  suffering  in 
r'onsequence  of  a  telegi'aph  company  not  properly  transmitting  or  de- 

'Allsoi)  V.  AUsop,  5  Hurl  &  X.  554.  Maupin,  3  Mo.  323;   Roper  v.  Clay,  18 

^Allsop  V.  Allsop,  5  Hurl  &  N.     See  Id.    383,    59    Am.    Dee.    314;    Giese    v. 

also    Lynch   v.    Knight,    9    H.    L.    Cas.  Schultz,   53   Wis.   462,    10   N.   W.   598; 

592.  Grant  v.  Willey,  101  Mass.  35G;  Tobin 

*  See    extensive    note  to    Weaver     v.  v.  Shaw,  45  Me.  331,  71  Am.  Dec.  547; 

Bachert,   44   Am.   Dec.    178.      See   also,  Renihan  v.  Wright,  125  Ind.  536,  25  N. 

Millington   v.    Loring,    L.   R.,    6    Q.    B.  E.   822,  21   Am.   St.  Rep.   249,  9  L.   R. 

Div.   190;   s.  c,  50  L.  J.  Q.  B.  214;   s.  A.  514. 

c,  43  L.  T.  659;   s.  c,  29  Weak.  Rep.  *  West.    U.    Tel.    Co.    v.    Rogers,      68 

257;   King  v.  Kersy,  2  Ind.  402;   Hay-  Miss.   748,  24  Am.   St.  Rep.  300,  9  So. 

mond    V.    Saucer,    84    Ind.    3;    Hill    v.  833,   13  L.  R.  A.  85yn. 


§    o72]  MEASURE   OF   DAMAGES.  549 

livering  a  niossage,  it  is  immaterial  wlielhor  the  action  be  brought  for 
the  breach  of  the  contract  for  sending  or  for  the  failure  to  perfomi 
the  duty  devolving  on  it  under  the  contract.  In  other  words,  the 
rule  that  such  damages  cannot  be  recovered  for  mental  anguish  and 
suffering  alone,  is  the  same  whatc^ver  be  the  form  of  the  action.  The 
nature  and  substance  of  the  default  and  the  consequent  injury  are 
the  same  in  either  form.'  If,  however,  the  action  is  to  recover  dam- 
ages for  mental  suffering  where  it  accompanies  other  injuries  to 
the  person,  the  rule  is  different.  There  is  more  latitude  allowed  in 
the  recovery  of  damages  brought  in  tort,  since,  in  this  form  of  action 
damages  for  mental  suffering  are  generally  a  subject  of  considera- 
tion for  the  jury.*' 

§  572.     Rule  departed  from. 

The  first  instance  in  which  this  long-recognized  rule  of  the  com- 
mon law  was  departed  from  was  by  the  supreme  court  of  Texas  in 
the  So  Relle  case.  In  this  ease,  it  was  held  that  the  addressee  of  a 
telegraph  message  might  recover  from  the  company,  as  compensation, 
damages  for  mental  suffering  caused  by  its  failure  to  deliver  prompt- 
ly a  message  which  announced  tlie  death  of  his  mother,  by  reason  of 
which  default  he  failed  to  attend  her  funeral."  In  support  of  the 
ruling  in  this  case,  the  court  cited  three  cases.  One  was  an  action 
for  assault  and  batterj^  f  another  was  a  case  in  which  a  serious  and 
permanent  personal  injury  had  been  sustained  f  and  the  last  case 
cited  was  where  the  wrongful  act  charged  was  the  seduction  of  the 
plaintiff's  daughter. -^^  In  all  of  these,  as  a  matter  of  course,  and  in 
accordance  with  generally  admitted  rules,  damages  for  mental  suf- 
fering were  allowed.  ^^  This  court  relied  mainly,  however,  on  the 
following  passage  from  the  text  of  Shearman  and  Redfield  on  Xegli- 
gence :  'Tn  case  of  a  delay  or  total  failure  of  delivery  of  a  message  re- 

°  West.    U.    Tt'l.    Co.    V.    Rogers,    68  '^  Hays   v.    Houston,    etc..    R.    Co..    46 

Miss.  748,  24  Am.  St.  Rep.  300,  9  So.  Tex.  279. 

833,  13  L.  R.  A.  8.5n.  'Houston,    etc..    R.    Co.    v.    Randall, 

"Cowan    V.    West.    U.    Tel.    Co.,    122  .^(i  Tex.  261. 

Iowa  379,  98  N.   W.  281,   101   Am.   St.  '"  Piiillips  v.   Hoyle,  4   Gray,   508. 

Rep.  268,  64  L.  R.  A.  545.  "  See   note   3. 

•So   Relle   v.    West.    U.   Tel.    Co.,   55 
Tex.  308,  40  Am.  Rep.  805. 


550  TELEGKAPH   AXD    TELEPHONE    COMPANIES.  [§    572 

latiiig  to  matters  not  connected  with  business,  such  as  personal  or  do- 
mestic matters,  we  do  not  think  that  the  company  in  fault  ought  to 
escape  with  mere  nominal  damages  on  account  of  the  \vant  of  strict 
commercial  value  in  such  messages.  Delay  in  the  announcement  of 
a  death,  an  arrival,  the  straying  and  recovery  of  a  child,  and  the 
like,  may  often  be  productive  of  an  injury  to  the  feelings  which  can- 
not be  estimated  in  money,  but  for  which  a  jury  should  be  at  liberty 
to  award  fair  damages."^^ 

§  573.     Same  continued — So  Relle   Case   overruled  and  reinstated. 

In  a  later  case,  the  court  of  Texas  went  counter  to  the  view  taken 
in  the  So  Relle  case,  and  held  that  if  the  plaintiff  is  not  entitled  to 
recover  even  nominal  damages,  as  for  a  breach  of  a  contract  and  has 
sustained  no  injury  to  his  reputation,  property  or  person,  he  can  have 
no  recovery  for  mental  suffering  alone. -^^  In  another  case,  it  was 
held  that  damages  for  mental  distress  could  be  recovered  where  nomi- 
nal damages  were  proved,  in  cases  where  there  w^as  such  gToss  negli- 
gence or  willfullness  as  to  justify  exemplary  damages.  •^■*  But  both 
of  these  cases  have  since  been  overruled  ;^^  so  that  the  So  Relle  case 
has  been  reinstated  as  the  law^  of  Texas,  and  has  been  followed  by  a 
nimiber  of  decisions  of  the  same  court. ^^    And  the  courts  of  a  few  of 

"Shearman   and  Redfield  on   Neg.,  4  v.  Nations,  82  Tex.  539,  18  S.  W.  700, 

Ed.,  sec.  756.  .  27    Am.    St.    Rep.    914;    West.    U.   Tel. 

"Gulf    C.    and    Santa    Fe   R.    Co.   v.  Co.  v.  Rosentreter,  80  Tex.  406;  West. 

Levy,   59   Tex.   563,   46   Am.   Rep.   278.  U.    Tel.    Co.    v.    Beringer,    84    Tex.    38, 

"Gulf  C.  and  Santa  Fe  R.  Co.  v.  Le-  19    S.    W.   336;    West.   U.   Tel.    Co.    v. 

vy,  59  Tex.  542,  46  Am.  Rep.  269.  Erwin.    19   S.   W.    (Tex.)     1002;    West. 

"Stuart   V.    West.    U.    Tel.    Co.,      66  U,  Tel.   Co.   v.   Linn.   97   Tex.   7,   26   S. 

Tex.   580,   18   S.   W.   351,  59  Am.   Rep.  W.  460,  47  Am.  St.  Rep  58;   West.  U. 

623.  Tel.  Co.  v.  Neel,  25  S.  W.   661;   West. 

'«Loper   V.   West.   U.     Tel.    Co..     70  [J.  Tel.  Co.  v.  Carter.  2  Tex.  Civ.  App. 

Tex.  689;  8  S.  W.  600;  West.  U.  Tel.  624,  21   S.  W.  688;   West.  U.  Tel.  Co. 

Co.  V.  Cooper,  71  Texas  507,  9  S.  W.  v.  Jobe,  6  Tex.  Civ.  App.  403,  25  S.  W. 

598,   1   L.  R.   A.   728,   10  Am.   St.  Rep.  168;    West.   U.    Tel.    Co.   v.   Sweetman, 

772;  West.  U.    Tel.     Co.    v.    Broesche,  19  Tex.  Civ.  App.  435;   West.  U.  Tel. 

72  Tex.   654,   13     Am.   St.   Rep.     843;  Co.  v.  May,  8  Tex.  Civ.  App,  176,  27  S. 

West.   U.   Tel.   Co.   v.   Brown,   71   Tex.  W.  760;  West.  U.  Tel.  Co.  v.  O'Keefe. 

723,   10   S.   W.   323,   2  L.   R.  A.   706n;  29   S.  W.     137;     West.     U.     Tel.     Co. 

West.  U.  Tel.  Co.  v.  Simpson,  73  Tex.  v.    Warren,    36    S.    W.    314;    West.   U. 

422,    11    S.   W.   385;   West.  U.  Tel.   Co.  Tel.   Co.  v.   Kingsley,   8  Tex  Civ.  App. 


^  573] 


MEASURE   OF   DA.MAGKS. 


551 


the  other  states  to  a  greater  or  less  extent.^"  The  decisions  in  the 
Texas  courts  are  not  themselves  harmonious  and  have  not  escaped  the 
severe  criticism  of  text-Avriters  and  other  courts.  In  fact,  the  earlier 
decisions  have  been  criticised  l)y  later  decisions  of  the  same  court. 


527,  28  S.  W.  831;  West.  U.  Tel.  Co. 
V.  Smith,  33  S.  W.  742;  Koach  v. 
Jones,  18  Tex.  Civ.  App.  231,  44  S. 
W.  677;  West.  U.  Tel.  Co.  v.  Seffel,  71 
S.  W.  616. 

"  Alabama.— West.  U.  Tel.  Co.  v. 
Henderson,  89  Ala.  510,  7  So.  419,  18 
Am.  St.  Rep.  148;  West.  U.  Tel.  Co. 
V.  Wilson,  93  Ala.  32,  9  So.  414,  30 
Am.  St.  Eep.  23;  West.  U.  Tel.  Co.  v. 
Cunningham,  99  Ala.  314,  14  So.  579; 
West.  U.  Tel.  Co.  v.  Adair,  115  Ala. 
441,  22  So.. 73;  West.  U.  Tel.  Co.  v. 
McNair,  120  Ala.  99,  22  So.  73;  West. 
U.  Tel.  Co.  V.  Crocker,  135  Ala.  492, 
5H  L.  R.  A,  398.  These  cases  seem  to 
have  been  somewhat  modified  in  the 
more  recent  case  of  West.  U.  Tel.  Co. 
V.  Crumpton,  138  Ala.  632,  which  ap- 
pears to  be  the  latest  decision  upon 
the  subject. 

Indiana. — Reese  v.  West.  U.  Tel.  Co., 
123  Ind.  294,  24  N.  E.  163,  7  L.  R.  A. 
583n. 

Icnoa. — jMcntzcr  v.  West.  U.  Tel.  Co., 
93  Iowa  752,  28  L.  R.  A.  72,  62  N.  W.  1, 
57  Am.  St.  Rep.  294;  Cowan  v.  West. 
U.  Tel.  Co.,  122  Iowa  379,  98  N.  W. 
281,  101  Am.  St.  Rep.  268,  64  L.  R. 
A.  545. 

Kentucky. — Chapman  v.  West.  U. 
Tel.  Co.,  90  Ky.  265;  West.  U.  Tel.  Co. 
v.  Van  Cleave.  107  Ky.  464,  54  S.  W. 
827,  92  Am.  St.  Rep.  366;  West.  U. 
Tel.  Co.  v.  Fisher,  107  Ky.  513,  54  S. 
W.  830;  West.  U.  Tel.  Co.  v.  Matthews, 
107  Ky.  663,  55  S.  W.  427;  West.  U. 
Tel.  Co.  v.  Johnson,  107  Ky.  631; 
West.  U.  Tel.  Co.  v.  Mcllvoy,  107  Ky. 
633;  West.  U.  Tel.  Co.  v.  Sternbergen, 
107  Ky.  469;  West.  U.  Tel.  Co.  v.  Cri- 


dor,  107  Ky.  GOO;  Taliferro  v.  West. 
I'.  Tel.  Co.,  54  S.  W.  825,  21  Ky.  L. 
Rep.  1290;  Louisville,  etc.,  R.  Co.  v. 
Hull.  (IS  S.  W.  433,  57  L.  R.  A. 
771. 

Louisiaua. — Graham  v.  West.  U. 
Tel.  Co.,  109  La.   1069,  34  So.  91. 

Xorth  Carolina. — Young  v.  West.  U. 
Tel.  Co..  107  N.  C.  370,  9  L.  R.  A. 
669n,  11  S.  E.  1044,  22  Am.  St.  Rep. 
883;  Sherrill  v.  West.  U.  Tel.  Co.,  116 
N.  C.  655,  21  S.  E.  429,  117  N.  C. 
352,  23  S.  E.  277;  Lyne  v.  West.  U. 
Tel.  Co.,  123  N.  C.  129,  31  S.  E. 
350;  Cashion  v.  \\est.  U.  Tel.  Co.,  123 
X.  C.  267,  124  K  C.  459,  31  S.  E. 
493,  45  L.  R.  A.  160;  Dowdy  v.  West. 
U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E. 
(102:  Darlington  v.  West.  U.  Tel.  Co.. 
127  X.  C.  448,  37  S.  E.  479;  Kennon 
V.  West.  U.  Tel.  Co.,  126  N.  C.  232, 
35  S.  E.  468;  Landie  v.  West.  U.  Tel. 
Co.,  124  N.  C.  528,  32  S.  E.  886; 
IMeadows  v.  West.  U.  Tel.  Co.,  132  N. 
C.  40,  43  S.  E.  512;  Bryan  v.  West. 
U.  Tel.  Co.,  133  K  C.  693,  45  S. 
P:.  938.  See  also  Havener  v.  West.  U. 
Tel.  Co..  117  N.  C.  540,  23  S.  E.  457. 
The  latest  decision  in  this  state  on  this 
point  is  the  case  of  Green  v.  West.  I". 
Tel.  Co.,  136  N.  C.  489,  1  Am  & 
Eng.  Ann.  Cas.  349,  49  S.  E.  165,  103 
Am.  St.  Rep.  955,  67  L.  R.  A.  980,  in 
wliich  a  wider  view  is  entertained  than 
in  any  other  case. 

'Nevada. — Barnes  v.  West.  U.  Tel. 
Co.,  27  Nev.  438,  76  Pac.  931  103  Am. 
St.  Rep.  776,  6  L.  R.  A.  666. 

South  Carolina. — Butler  v.  West.  U. 
Tel.  Co.,  62  S.  C.  222,  40  S.  E.  162, 
S!'  Am.  St.  Rej).  893;   Marsh  v.  West. 


552  TELEGKAPII   AND   TELEPHONE    COMPANIES.  [§    574 

§  574.     Federal  court  view — how  held. 

The  federal  court  has  held  to  the  common-law  rule  on  this  subject, 
and  no  court  before  which  the  question  has  come  up  has  lield  any 
other  view  than  that  damages  could  not  be  recovered  for  mental  suf- 
fering alone. ^^  It  was,  however,  conceded  in  one  case  that  if  there  had 
been  such  gToss  negligence  on  the  part  of  the  company's  agent  as  to  in- 
dicate a  wantpn  or  malicious  purpose  in  failing  to  transmit  or  de- 
liver the  message,  the  mental  suffering  of  the  plaintiff  might  be  con- 
sidered. The  state  in  which  the  case  arises  may  adhere  to  the  rule 
in  the  So  Eelle  case,  yet  this  fact  need  not  be  considered  by  the  fed- 
eral court,  and  this  is  true  although  the  decisions  in  these  states  may 
have  been  largely  induced  by  the  provisions  of  the  statutes  in  those 
states.^® 

§  575.     Ground  upon  which  these  cases  are  maintained. 

The  courts  in  those  states  which  hold  that  damages  may  be  recov- 
ered for  mental  suffering  alone,  base  their  opinions  for  maintaining 
such  cases  on  different  theories.  Some  hold  that  when  the  company 
has  been  guilty  of  a  breach  of  a  contract  of  sending,  in  which  the 

U.   Tel.    Co.,    65    S.    C.    430,   43    S.    E.  Washington.— Davis    v.    Tacoma    R., 

953.     At  first  the  doctrine  was  denied  etc.,   Co.,   35   Wash.   203,   66   L.   R.   A. 

i.u   Lewis   v.   West.   U.   Tel.   Co.,   57    S.  802. 

C.      325.      This   was    followed    by    an  '» Chase  v.  West.  U.  Tel.  Co.,  44  Fed. 

act   of   the   legislature    (23    stat.    748;  554;   Crawson  v.  West.  U.  Tel.  Co.,  47 

Code    (1902),    vol.     1,     section     2223),  Fed.  544;   Kester  v.  West.  U.  Tel.  Co., 

permitting     damages     in     such     cases.  55    Fed.    603;    Tyler   v.    West.   U.    Tel. 

This   statute  was   held  to   be   constitu-  Co.,  54  Fed.   634;    Gahan  v.  West.    U. 

tional    in,    Simmons   v.    West.    U.    Tel.  Tel.  Co.,  59  Fed.  433;  Stansell  v.  West. 

Co.,  63  S.  C.  429,  57  L.  R.  A.  607.  U.    Tel.    Co.,    107    Fed.    668;    McBride 

Tennessee. — Wadsworth    v.    ^^'est.   U.  v.   Sunset  Tel.   Co.,  96  Fed.  81;   West. 

Tel.  Co.,  86  Tenn.  695,  6  Am.  St.  Rep.  U.    Tel.    Co.   v.    Ward,    (C.    C.    A.)     57 

861;   Railroad  Co.  v.  Griffin,  92  Tenn.  Fed.  471,  21  L.  R.  A.  700;   Wilson  v. 

694;  West.  U.  Tel.  Co.  v.  Robinson,  97  Richmond,  etc.,  R.  Co.    (C.  C.  A.),  52 

Tenn.   638,  37   S.  W.   545,   34  L.  R.  A.  Fed.   264,    17   L.   R.   A.   804;    West.   U. 

431n;   West.  U.  Tel.  Co.  v.  Frith,   105  Tel.  Co.  v.  Sklar   (C.  C.  A.),  126  Fed. 

Tenn.  167,  58  S.  W.  118;  Gray  V.  West.  295.      Compare    Beasley    v.    West.    U. 

U.   Tel.   Co.,    108   Tenn.   39,   64   S.   W.  Tel.  Co.,  39  Fed.  181. 

1063,  56  L.  R.  A.  301n,     91     Am.     St.  ^»  West.  U.  Tel.   Co.  v.   Sklar    (C.  C. 

Rep.    706;    West.    U.   Tel.    Co.   v.    Mel-  i^.) ,    126    Fed.   295. 
Ion,  96   Tenn.   66,   33   S.   W.   725. 


^    575]  MEASURE  OF  DAMAGES.  555 

plaintiff  was  a  party  or  which  was  made  for  his  Ix-nofit,  the  latter 
then  has  a  cause  of  action.  Having  acquired  a  standing  in  court,  he 
is  then  entitled  to  recover  all  damages  which  were  the  direct  and 
proximate  result  of  said  breach."^'  There  being  a  breach  of  the  con- 
tract— and  it  was  held  in  one  case  that  it  was  necessary  for  the  action 
to  be  in  contract  and  not  in  tort'-^ — it  was  not  necessary  to  prove 
nominal  damages,  since  this  would  be  a  means  of  avoiding  any  dam- 
ages. As  was  said :  "To  speak  of  the  right  to  nominal  damages  as  a 
condition  for  giving  substantial  damages,  is  a  palpable  contradiction. 
To  give  nominal  damages  necessarily  denies  any  further  recovery. 
.  .  .  It  is  manifest  that  to  allow  such  a  recovery  is,  in  real  substance, 
an  effort  to  protect  feelings  by  legal  remedy."^^  In  some  of  the  other 
states,  the  courts  proceed  on  the  theoi-y  of  certain  statutes  therein 
declaring  the  duties  and  liabilities  of  these  companies.  In  Tennes- 
see, for  instance,  there  is  one  statute  ^^  which  requires  telegraph 
companies  to  transmit  and  deliver  all  proper  messages  "correctly  and 
without  unreasonable  delay;"  and  it  is  declared  by  another  statute 
that,  on  a  failure  to  do  so,  the  defaulting  company  shall  be  liable  in 
damages  to  the  party  aggrieved.  In  a  case  brought  under  these 
statutes  to  recover  damages  for  mental  anguish  and  suffering  in  con- 
sequence of  a  message  not  being  properly  delivered  and  which  re- 
lated to  the  serious  illness  and  death  of  plaintiff's  brother,  the  court 
said:  "The  act  does  not  discriminate  between  messages  appertaining 
to  matters  pecuniary  merely  and  those  having  reference  to  matters 
of  a  domestic  nature,  as  are  those  now  before  us.  .  .  There  is  no  dis- 
crimination with  respect  to  the  nature  of  the  messages  to  be  conveyed 
nor  is  there  any  discrimination  with  respect  to  the  nature  of  the  dam- 
ages to  be  recovered  for  the  company's  default.  One  section  imposes 
a  general  duty,  and  the  other  gives  a  universal  right  of  action  for 

~West.    U.    Tel.    Co.    V.    Henderson.  -'Blount  v.  West.  U.  Tel.  Co.,  27  So. 

89    Ala.    510.    7    So.    419,    18    Am.    St.  770.  120  Ala.  105. 

Rep.  148;  West.  U.  Tel.  Co.  v.  Wilson,  "Chapman  v.  West.  U.  Tel.  Co.,  88 

9:«  Ala.  32,  9  So.  414,  32  Am.  St.  Rep.  Ca.  703,  30  Am.  St.  Eep.  183,  17  L.  R. 

23;   Chapman  v.  West.  U.  Tel.  Co.,  88  A.  430. 

Ga.   703    30   Am.   St.   Rep.    1S3.    17    L  ="  Code    M.    &    V.,    §1541.      See    also 

R.   A.   430.  23  Stat.  748:  Code  1902,  vol.  1,  §2223 

South  Carolina. 


554  TELEGKAPH   AA'D   TELEPIIOXE    COMPANIES.  [§    575 

the  breach  of  that  duty.  And  of  necessity  the  nature  and  amount 
of  damages  recoverable  in  each  particular  case  are  to  be  determined 
by  the  character  of  the  message  and  the  extent  of  the  injury  caused  by 
the  defendant's  default."-^  But  in  order  to  recover  damages  in  cases 
where  the  courts  base  their  opinions  on  either  theory,  it  is  necessary 
that  the  company  be  informed,  either  by  the  face  of  the  message,  or 
by  extrinsic  evidence,  of  the  nature  and  character  of  the  message; 
since,  if  it  does  not  enter  into  the  contemplation  of  the  parties  at  the 
time  the  contract  was  made  that  mental  injuries  would  be  the  re- 
sult of  the  breach  of  said  contract,  damages  cannot  be  recovered  there- 
for.2-'' 

§  576.     View  of  subject  in  Louisiana. 

In  Louisiana  it  is  held  that  damages  may  be  recovered  for  mental 
angTiish  or  suffering  disconnected  from  pecuniary  damages  or  phy- 
sical injuries.  The  view  the  courts  in  that  state  entertain  on  this 
subject  is  not  necessarily  derived  from  the  opinion  in  the  So  Relle 
case,  or  by  virtue  of  any  statutory  enactments.  It  must  be  reanem- 
bered  that  the  laws  in  that  state  are  not  founded  on  the  common-law 
principles ;  but,  in  view  of  the  peculiar  provisions  of  the  civil  law, 
which  is  the  basic  law  of  Louisiana,  such  damages  have  been  al- 
lowed.^® 

§  577.     Instances  in  which  damages  are  allowed. 

The  cases  in  which  damages  are  allowed  for  mental  suffering  and 
anguish  are  such  as  relate  to  the  serious  illness,  death  or  time  set  for 
burial  of  some  one  related  to  the  party  to  whom  the  message  is  sent. 
But  in  a  recent  case  decided  in  the"  supreme  court  of  I^orth  Carolina, 
it  was  held  that  the  plaintiff  could  recover  compensatory  damages  for 
mental  suffering  disconnected  from  any  physical  pain  or  attending 
circumstances  of  sickness  or  dcath.^''     We  very  much  fear  that  this 

=^Wadsworth   v.    West.    U.   Tel.    Co.,  =«  Graham  v.  West.   U.  Tel.   Co.,   109 

8t5  Tenn,  695,  8  S.  W.  574,  6  Am.  St.  La.  Ann.   10G9,  34  So.  91. 

Eep.  872.  "Green  v.  West.  U.  Tel.     Co.,     136 

« Reese  v.  West.  U.     Tel.     Co.,     123  N.   C.   489,    1    Am.   &   Eng.   Ann.   Gas. 

Ind.   294,   24   X.    E.    163,   7    L.    R.   A.  349,    103   Am.   St.   Rep.   953,   67   L.  R. 

583n;    So   Relle  v.   West.   U.   Tel.   Co.,  A.   985. 
5o  Te.x.  308,  40  Am.  Rep.  805. 


^    578]  MEASURE  OF  DAMAGES.  555 

case  will  have  the  ?:ame  effect  in  thnt  state  as  the  So  Relle  case  ha<l  in 
Texas. 

§  578.     Limitation  of  rule. 

There  has  been  no  case  where  the  liabilities  of  telegraph  companies 
were  concerned,  which  has  been  the  cause  of  so  much  litigation  over 
unreasonable  claims  as  the  So  Eelle  case.  It  is  the  peculiar  nature 
of  the  complaint  that  makes  the  damage  so  difficult  to  fix,  and  thereby 
handle  such  actions  with  justice.  Xo  one  but  the  plaintiff  knows  the 
extent  of  his  mental  sufferings,  and,  for  this  reason,  it  is  not  only  dif- 
ficult to  prove  the  extent  of  such  injuries,  in  order  that  he  may  re- 
cover a  sufficient  compensation  therefor,  but  it  is  much  more  difficult 
for  defendant  company  to  make  any  defense  in  these  cases.  The  Texas 
courts  have  long  since  realized  this  fact  and  have  attempted  in  var- 
ious ways  to  put  a  limit  to  such  actions,  which  have  been  an  object 
of  much  criticism  and  discord  among  their  own  courts.  For  instance, 
a  distinction  seems  to  have  been  drawn,  in  that  state,  Ix^tween  the 
negligence  in  failing  to  deliver  a  message,  which  causes  mental  pain 
and  suffering,  and  failing  to  deliver  one  Avhich,  if  delivered,  would 
relieve  such  suffering.  In  a  case  -^  which  held  this  distinction,  it 
seems  that  the  plaintiff  and  his  wife  had  received  information  of 
the  dangerous  illness  of  the  latter's  mother.  Subsequently,  a  mes- 
sage was  sent  containing  information  of  the  mother's  improved  con- 
dition. ''The  damage  here  complained  of  was  the  mere  continued 
anxiety  caused  by  the  failure  to  promptly  deliver  the  message.  Some 
kind  of  unpleasant  emotion  in  the  mind  of  the  injured  party  is  prob- 
ably the  result  of  the  breach  of  the  contract  in  most  cases.  But  the 
cases  are  rare  in  Avhieh  such  emotions  can  be  held  to  be  an  element 
of  damages  resulting  from  the  breach.  For  injuries  to  feelings  in 
such  cases  the  courts  cannot  give  redress.  Any  other  rule  would  re- 
sult in  intolerable  litigation."  As  will  be  seen,  the  distinction  be- 
tween these  cases  was  so  unsubstantial  that  it  was  evidently  resorted 
to  for  the  express  purpose  of  obstiTicting  the  tide  of  "intolerable  liti- 
gation" flowing  from  the  decisions  following  the  So  Eelle  case. 

=»Rowell    V.    West.    U.    Tel.    Co..    75 
Tox.  26,  12  ?.  \V.  .1.S4. 


556  TELEGKAPH  AND  TELEPIIOXE   COMPANIES.  [<§>    579 

§  579.     Same  continued — suffering  must  be  real. 

Another  iiieaiis  by  Avbieh  the  flow  of  this  "intolerable  litigation" 
has  been  attempted  to  be  obstructed  is,  by  the  rule  laid  down  in  some 
of  those  cases,  and  closely  adhered  to,  that  in  order  for  damages  to 
be  recovered  in  snch  cases,  the  mental  suffering  must  be  real  and 
not  such  as  may  be  the  result  of  a  too  sensitive  or  excitable  mental 
constitution  or  a  distorted  imagination.-^  ''If  gTief  or  sorrow  can  be 
produced  by  things  unreal,  mere  pigments  of  the  brain,  or  a  tort,  an 
individual  of  a  somber,  gloomy  imagination  would  often  be  entitled 
to  large  damages  on  account  of  mental  suffering,  while  others  of  a 
buoyant  fancy,  for  the  same  breach  of  duty,  would  not  be  entitled 
to  any  thing ;  and  damages,  instead  of  being  measured  by  the  rule  of 
law  as  applied  to  the  rule  of  facts  Avould  largely  depend  upon  the 
fertility  of  the  imagination  of  the  suitor. "^^  Thus,  mere  anxiety  re- 
sulting from  plaintiff's  inability  to  learn  what  he  seeks  to  know  of 
his  relatives  is  no  ground  for  recovery  of  damages.^  ^  ISTeither  is  a 
suit  maintainable  on  the  ground  of  mere  anger  or  resentment  in 
failing  to  deliver  a  message  in  regard  to  a  death  f~  nor  the  worry  of 
the  loss  over  a  position  by  a  student,  although  the  worry  seriously  in- 
terfered with  his  studies.^^ 

§  580.     Same  continued — must  be  the  result  of  the  cause  of  com- 
plaint. 

Juries  are  so  easily  misled  through  prejudice,  sympathy  and  ig- 
norance from  the  main  cause  of  the  action,  in  such  cases,  to  sufferings 
of  the  mind,  resulting  from  other  causes,  that  it  should  always  be  the 
duty  of  the  courts,  on  proper  request,  to  instruct  them  that  a  recov- 
ery could  only  be  had  for  the  injuries  resulting  directly  and  proxi- 
mately from  the  cause  of  complaint,  and  that  none  other  should 
be  considered  in  their  deliberation.^*     As  said  heretofore,the  plaintiff 

-""McAllen   v.    West.    U.   Tel.    Co.,   70  "West.  U.  Tel.  Co.  v.  Bell,  Gl  S.  W. 

lex.    243,    7    S.    W.    715;    Morrison    v.  (Tex.)    942. 

West.   U.   Tel.    Co.,    24   Tex   Civ.    App.  ==>  West.    U.    Tel.    Co.    v.    Partlow,    30 

347,  59   S.  W.   1127.  Tex.   Civ.  App.   599,   71   S.   W.   584. 

="McAllen   v.    West.   U.   Tel.    Co.,   70  =^  Beasley   v.    West.    U.    Tel.    Co.,   39 

Tex.  243,  7   S.  W.  715.  Fed.  187;  Rosser  v.  West.  U.  Tel.  Co., 

^>Akard  v.   West.  U.  Tel.   Co.,  44   S.  130    N.    C.    251,    41    S.    E.    378;    Cash- 

W.    (Tex.)    538.  ion    v.    West.    U.    Tel.    Co.,    123    N.    C. 


^    581]  MEASURE   OF   DAMAGES,  557 

is  the  only  party  who  knows  the  extent  of  his  suffering,  and  in  at- 
tempting to  show  these  to  others  he  is  liable  to  expose  the  injury 
arising  from  other  kindred  causes.  His  injuries  may  be  the  result  of 
several  causes;  so,  it  Avould  bo  difficult  for  him  to  measure  out  and 
divide  the  whole  so  as  to  give  the  extent  of  suffering  resulting  from 
the  cause  of  complaint.  This  fact  was  not  lost  sight  of  by  Judge 
Watts,  who  rendered  the  decision  in  the  So  Relle  case.  In  closing 
his  opinion,  he  said :  "It  should  be  remarked  that  great  caution  ought 
to  be  observed  in  the  trial  of  cases  like  this ;  as  it  will  be  so  easy  and 
natural  to  confound  the  corroding  grief  occasioned  by  the  loss  of 
the  parent  or  other  relative  with  the  disappointment  and  regret  oc- 
casioned by  the  fault  or  neglect  of  the  company,  for  it  is  only  the  lat- 
ter for  which  a  recovery  may  be  had;  and  the  attention  of  the  juric? 
might  w-ell  be  called  to  that  fact."  ^^ 

§  581.     Same  continued — suffering  must  be  of  the  plaintiff. 

There  is  no  doubt  but  that  the  iniud  may  be  as  seriously  injured  as 
any  part  of  the  body ;  in  fact  there  is  such  a  close  union  between  th<; 
two  that  one  can  hardly  suffer  without  the  other  being  affected  more 
or  less.  So,  it  is  not  that  w-e  intend  to  be  understood  in  saying  that 
the  mind  cannot  be  injured,  for  which  damages  may  be  recovered, 
but  that  the  diflSculty  of  proving  the  injury  is  so  great  it  should  not 
— only  in  certain  cases — be  the  only  grounds  for  an  action.  There  i.^ 
a  marked  resemblance  between  the  sufferings  of  the  mind,  caused  by 
injuries  there io,  and  the  sufferings  of  the  body,  and  yet  this  can  only 
be  appreciated  by  the  injured  person,  himself.  If  we  could  discern 
them  both,  the  results  with  respect  to  us  would  be  exactly  the  same ; 
but,  while  one  can  be  seen  or  examined,  and  the  extent  of  suffering 
thereby,  to  a  proximate  degree,  measured,  yet  there  is  no  way  tha' 

207.   31    S.   E.   493.    124   N.   C.  459,  45  U    Tel.  Co..  14  Tex.  Civ.  App.  536,  3S 

L.  R.  A.  160,  32  S.  E.  746;  Wadsworth  S.    W.   64;    West.   U.   Tel.   Co.   r.   Shu 

V.  West.  U.  Tel.  Co.,  86  Tenn.  695.  6  mato.  2  Tex.  Civ.  App.  429,  21   .S.  W. 

Am.   St.  Rep.   864;    So.   Relle  v.   West.  109:    West.  U.   Tel.   Co.  v.   Warren,  3ti 

U.  Tel.   Co.,  55  Tex.  308.  40  Am.  Rep.  S.    W.   314;    West.    C.   Tel.   Co.  v.   Ste- 

R05;  Gulf,     etc.,  R.     Co.  v.     Levy.     59  yens,   2   Tex.   Civ.   App.   129.   21   S.   W. 

Tox.   543,  46  Am.   Rep.   269;   West.   V.  148;   West.  U.  Tel.  Co.  v.  Edmondson. 

Tel.  Co.  V.  Winpate.  6  Tex.   Civ.  App  !)]    Tex.  206,  60  Am.   St.  Rep.   873. 
394;    West.   U.   Tel.   Co.   v.   Cooper,   71  ^o  go   Relle   v.   West.   U.  Tel.   Co..   5.1 

Tex.  507,  9  S.  W.  598,   1  L.  R.  A.  72b.  Tex.  308,  40  Am.  Rep.  SOS. 
10  Am.  St.  Rep.  772:  Johnson  v.  West. 


558  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    580 

the  injuries  to  the  mind  can  be  so  ascertained  or  determined.  It  is 
generally  held  that  if  tliere  is  .an  injury  to  the  body,  damages  may 
bo  recovered  for  mental  suffering  which  is  the  direct  result  of  the 
same  cause  that  produced  the  bodily  injury,  but  in  no  instance  can  the 
same  damages  be  recovered  in  actions  for  physical  pain  resulting 
from  a  different  cause  than  that  of  the  latter,  l^cither  can  the  phy- 
sical sufferings  of  another  be  considered  in  a  case  brought  exclusively 
by  the  plaintiff  for  his  own  bodily  hurts,  as  he  is  the  only  person  af- 
fected with  respect  to  that  action.  It  is  generally  held,  therefore,  in 
those  cases  where  damages  may  be  recovered  for  mental  anguish  alone 
tliat  the  suffering  of  the  plaintiff's  mind  and  not  that  of  others,  who 
may  be  affected  thereby,  can  be  considered  by  a  jury.  Thus,  when 
the  plaintiff's  relatives  endure  suffering  and  distress  of  mind  on  ac- 
count of  his  absence,  this  fact  cannot  be  considered  in  awarding  him 
damages  for  his  mental  anguish. ^"^ 

§  582.     Same  continued — anguish  from  independent  causes. 

A  distinction  has  been  drawn,  as  heretofore  noted,  in  those  states 
holding  that  mental  distress  alone  was  sufficient  grounds  for  an  ac- 
tion, between  injuries  to  the  mind  caused  by  a  delay  or  non-delivery 
of  a  message  and  that  resulting  from  independent  causes.^^  Thus,  in 
an  action  on  a  delayed  message  sent  by  the  mother  to  her  daughter 
in  regard  to  the  serious  illness  of  the  latter's  father,  the  company  will 
not  be  liable  to  the  mother  in  damages  for  her  mental  suffering  and 
distress,  caused  by  the  want  of  the  consoling  presence  of  her  daugh- 
ter at  the  burial,  where  she  could  and  would  have  been  present,  but 
could  not  have  been  present  at  the  death  if  the  message  had  not  been 
delayed.^*  JSTeither  is  mental  anguish  and  suspense  caused  by  a 
tardy  delivery  of  a  message  announcing  the  serious  illness  of  plain- 
tiff's father,  and  which  delayed  her  twenty-four  hours  in  starting  by 

^Giilf,   etc.,   Tel.   Co.   v.   Kichardson.  i>iondson,  91  Tex.  206,  66  Am.  St.  Rep. 

79   Tex.   649,   15   S.  W.   689;    West.  U.  873;    West.    U.    Tel.    Co.    v.    Bass,    28 

Tel.   Co.  V.   Lovett,  24  Tex.   Civ.  App.  Tex.  Civ.  App.  418;  West.  U.  Tel.  Co. 

84,   58   S.   W.   204.  v.  Parks,  25  S.  W.    (Tex.)   813. 

"Sparkman    v.    West.    U.    Tol.    Co.,  =»West.  U.  Tel.  Co.  v.  Luck,  91  Tex. 

130   N.   C.   447.    41     S.    E.    881;     Mc-  178,    41    S.    W.    469,   66   Am.    St.   Rep. 

Carthy  v.  West.  U.  Tel.  Co.,  56  S.  W.  869.     See  also  Rowell  v.  West.  U.  Tel. 

(Tex.)    568;   West.  U.  Tel.  Co.  v.  Ed-  Co.,  75  Tex.  26,  12  S.  W.  534. 


"^    583]  MEASURE   OF   L»AAIA(JES.  5.jS> 

rail  to  see  him,  a  gToniid  to  be  considered,  where  the  phiintiff  could 
not  have  arrived  at  his  home  in  time  for  the  funeral  had  the  message 
been  delivered  promptly.^^  In  another  case,  a  son  telegraphed  his 
father  to  send  a  carriage  to  meet  him  at  a  certain  place  and  to  wire 
him  when  the  carriage  Avould  arrive.  He  waited  several  days 
for  a  reply  to  his  message,  and  on  account  of  failing  to  get  one,  he 
suffered  great  distress  of  mind.  It  was  held,  that  this  suffering  could 
not  be  considered  in  an  action  to  recover  damages  for  mental  worry 
caused  by  the  message  not  being  delivered.^*^  So,  also,  where  plaintiff 
and  his  wife  had  received  information  of  the  dangerous  illness  of 
the  latter's  mother,  and  subsequently  a  message  was  sent  informing 
them  of  her  improved  condition,  but  the  company  failed  to  deliver 
it.  It  was  held  that  there  could  be  recovery  for  the  mental  angiiish 
suffered  by  the  plaintiff  and  his  wife  which  a  delivery  of  the  mes- 
sage would  have  relieved.^ ^ 

§  583.     Same  continued — must  have  prevented  the  injury. 

As  has  been  heretofore  noted,  damages  cannot  be  recovered  from 
a  telegraph  company  for  pecuniary  loss  in  consequence  of  its  negli- 
gent transmission  or  deliveiT  of  a  message,  when  the  same  could  not 
have  been  prevented  had  the  message  been  properly  delivered.  The 
same  rule  applies  to  cases  brought  to  recover  damages  for  mental 
suffering.  So,  if  the  suffering  to  the  mind  could  not  have  been  pre- 
vented had  the  message  been  promptly  delivered,  the  plaintiff  cannot 
recover,  although  the  company  negligently  delayed  its  delivery.'*-     In 

^»West.  U.  Tel.  Co.  v.  Luck,  91  Tex.  824.      See    also    West.    U.    Tel.    Co.    v. 

178,  41    S.   W.   469,   66  Am.   St.   Rep.  Eskridge,   7   Ind.  App.   208;    West.   U. 

S69.  Tel.  Co.  v.  Smith,     30  S.  W.      (Tex.) 

^"McAllen  v.    West.   U.   Tel.   Co.,   70  937;    West.    U.   Tel.   Co.  v.   Drake,    14 

Tex.   243,  7   S.   W.   715.  Tex.   Civ.  App.   601,     38   S.  W.     632; 

"Rowell  V.    West.    U.    Tel.    Co.,  75  West.  U.  Tel.  Co.  v.  Johnson,  16  Tex. 

Tex.  26,   12  S.  W.  534.  Civ.    App.    546;    West.    U.    Tel.    Co.    v. 

*^ Where  the   plaintiff   is   kept   away  \\aller,   47    S.    W.    (Tex.)    396;    West, 

from  the  death  bed  of  a  relative;  Cum-  U  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App. 

berland   Tel.   Co.   v.   Brown,    104   Tenn.  43,   60   S.  W.   982.     Where  plaintiff  is 

56,  50  L.   R.   .\.   277,  78  Am.   St.  Rep.  kept   away   from    the   funeral    of   some 

906;    West.    U.   Tel.    Co.   v.    Smith,   88  relative:    West.   U.   Tel.    Co.   v.    Stone, 

Tex.    9;    West.    U.   Tel.   Co.    v.    House-  27    S.   W.    (Tex.)    144;    West.   U.   Tel. 

v/right,   5  Tex.   Civ.   App.    1.   23   S.  W.  Co.  v.  Linn,  87  Tex.  7.  26  S.  W.  490; 


560  TELEGKAPII  AjN*D  TELEPHOIsE  compaxies.  [§    5S3 

cases  brought  to  recover  damages  for  distress  of  mind,  it  is  incum- 
bent upon  the  phiintiff  to  show  that  he  not  only  could  but  would  have 
prevented  the  injury  complained  of,  if  the  message  had  been  prompt- 
ly delivered  to  him.  Thus,  where  the  son  brings  suit  against  a  com- 
pany to  recover  damages  for  mental  anguish  and  suffering,  resulting 
in  his  being  kept  away  from  the  deathbed  of  his  father,  in  conse- 
quence of  a  telegram  being  delayed  announcing  the  latter's  condition, 
he  must  show  that  he  could  and  would  have  reached  his  father  before 
his  death  had  the  message  been  promptly  delivered.'*^  Whether  or 
not  he  could  and  would  have  gone  to  his  father  had  he  received  the 
message  promptly,  is  a  question  for  the  jury,  although  he  may  have 
testified  that  he  could  and  would  have  done  so.'*'* 

§  584.     Same  continued — postponement  of  funeral  services. 

It  has  been  attempted  to  be  shown  in  some  cases  in  order  to  evade 
the  above  rule,  that  notwithstanding  the  fact  that  the  desired  object 
of  the  message  could  not  have  been  complied  with  had  it  been  prompt- 
ly delivered,  yet  had  it  been  received  in  time,  other  arrangements 
could  have  been  made  by  which  the  injury  would  have  been  prevent- 
ed. But  this  rule  cannot  be  evaded  by  showing  that  if  the  message 
had  been  promptly  delivered,  the  plaintiff  would  have  arranged  a 
postponement  of  the  funeral  until  he  could  have  gotten  there.^^  The 

West.   U.   Tel.   Co.   v.   Motley,   87   Tex.  Civ.  App.   176,  27  S.  W.  760.     See  alsr) 

38,   27    S.   W.    52,   reversing  27    S.   W.  Evans  v.   West.  U.   Tel.  Co.,   56   S.  W. 

51.      It  is  also  essential  that  the  fail-  G09. 

lire    of    the    company   to    discharge    its  *'^  West.    L'.   Tel.   Co.   v.   Stone.   27    S. 

duty  promptly  be  the  proximate  cause  W.    (Tex.)    144;    West.    U.   Tel.   Co.  v. 

of  the  distress  and  suffering  for  which  I.inn,  87  Tex.  7,  26  S.  W.  490,  47  Am. 

damages  are  sought:   West.  U.  Tel.  Co.  St.  Rep.  58;  West.  U.  Tel.  Co.,  v.  Mot- 

V   Andrews,  78  Tex.  305,  14  S.  W.  641 ;  ley,  87  Tex.  38,  27  S.  W.  52,  reversing 

West.  U.  Tel.  Co.  v.  Hendrick.  26  Tex.  27   S.   W.   51.     Compare  West.   U.   Tel. 

Civ.  App.  366,  63  S.  W.  341.     Compare  Co.  v.  Van  Way,  54  S.  W.   (Tex.)   414: 

Phillips  v.  West.  U.  Tel.  Co.,  69  S.  W.  West.  U.  Tel.  Co.  v.  Carter,  20  S.  W. 

(Tex.)   997;  West.  U.  Tel.  Co.  v.  Coop-  (Tex.)    834;    West.    U.    Tel.    Co.,    Par- 

er,  71   Tex.  507,  9   S.   W.  598,   1   L.  Pv.  sons,    72    S.    W.    800,   24    Ky.    L.    Rep. 

A.  728,  10  Am.  St.  Rep.  772.  2008.     In  these  latter  cases  it  was  held 

"  Cumberland  Tel.  Co.  v.  Brown,  104  that  if  it  appeared  to  a  certainty,  that 

Tenn.  56,  55  S.  W.  155,  78  Am.  St.  Rep.  such  postponement     would     have     been 

906,   50  L.  R.  A.  277.  made,   damages   could  be  recovered. 

"West.   U.   Tel.   Co.   v.   May,   8   Tex. 


^    58G]  MEASURE  OF   DAMAGES.  561 

conditions  attached  to  such  a  state  of  affairs  are  too  uncertain.  Foi 
instance,  the  funeral  might  or  might  not  have  been  postponed;  or, 
the  reply  message  might  not  have  been  received  in  time  to  arrange 
for  such  postponement.  The  rule  that  such  injury  could  and  would 
have  been  prevented  had  the  message  been  ilclivorod  in  time,  cannot 
l)e  evaded  by  such  uncertain  propositions. 

§  585.     Same  continued — failure  to  transmit  money — no  cause. 

It  was  stated  in  another  place  in  this  chapter,  that  where  a  tele- 
graph company  contracts  to  transmit  money,  but  fails  to  promptly  do 
so,  the  measure  of  damages  for  such  breach  is  the  interest  on  the 
money  from  the  time  it  ought  to  have  been  transmitted  to  the  time 
it  was  sent,  together  with  the  price  of  the  message.  It  follows,  there- 
fore, that  a  failure  to  promptly  deliver  money  is  no  ground  upon 
which  the  addressee  may  recover  damages  for  mental  worry  and  ang- 
uish.-'« 

§  586.     Evidence  of  mental  suffering. 

The  general  rule  of  evidence  is,  that  where  the  state  of  a  person's 
mind,  his  sentiment  or  disposition  at  a  certain  time  is  the  subject  of 
inquiry,  his  statements  and  declarations  at  that  period  are  admiss- 
ible,^^ So,  the  declarations  of  a  testator  may  be  received  to  show  that 
his  mind  was  under  undue  influence  at  the  time  of  making  the  will  ;^® 
and,  so,  as  to  the  extent  of  a  mental  disease,  the  declarations  of  the 
person  affected  are  admissible."*^     It  has  been  held,  from  this  general 

*'  Robinson  v.  West.  U.  Tel.  Co.,  68  thereon.  Compare  International  Ocean 
S.  W.  G5G,  24  Ky.  L.  Rep.  452;  De  Tel.  Co.  v.  Saunclers.  32  Fla.  434.  14 
Vocolor  V.  West.  U.  Tel.  Co..  10  Tex.  So.  148.  21  L.  II.  A.  810. 
Civ.  App.  229;  Ricketts  v.  West.  U.  ^'Barthelniy  v.  People,  2  Hill  248; 
Tel.  Co.,  10  Tex.  Civ.  App.  226;  but  Hester  v.  Com.  85  Pa.  St.  139;  Wet- 
in  West.  U.  Tel.  Co.  v.  Wells.  39  So.  more  v.  Mell.  10  Ohio  St.  26. 
(Fla.)  838,  it  was  held  that,  where  <«IMilton  v.  Hunter,  13  Buch  (Ky.) 
tlie  company  willfully  refused  to  pay  163;  Lueso  v.  Cannon.  13  Id.  601;  Bat- 
to  plaintifT  money  sent  by  the  former  ton  v.  Watson.  13  Ga.  63,  58  Am.  Dec. 
thereby  causing  plaintifT  and  family  to  504. 

travel  twenty-four   hours   without  food  *"  Rex  v.   Johnson.  3  Car.  &   K.  354; 

or  funds,  he     might  recover     damages  Howe  v.  Howe,  99  Mass.  88 :   State  v. 

for  bodily  pain   and   suffering  and  for  Kring,  64  Mo.  591. 
mental   pain    and      anguish      attendant 
T.  &  T.— 36 


562  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  [<§>    586 

rule,  as  a  basis,  that  where  the  action  is  brought  to  recover  damages 
for  distress  of  mind  or  for  mental  anguish  and  suffering  in  conse- 
quence of  a  negligent  transmission  or  delay  in  the  deliverv'  of  a  mes- 
sage, the  natural  condition  of  the  mind,  with  respect  to  such  suffer- 
ing, may  be  shown  by  evidence  of  his  behavior  and  natural  expres- 
sions and  utterances  at  the  time  of  such.  Thus,  if  his  expression  of 
feelings  is  such  as  to  indicate  a  distress  of  mind,  or  if  his  behavior 
shows  that  his  feelings  are  greatly  injured  as  a  result  of  the  message 
not  accomplishing  its  purpose,  there  is  no  better  way  to  show  this  to 
a  jury  than  by  such  facts.  If  a  person  is  injured  physically,  it  is 
natural  for  him  to  show  suffering,  resulting  therefrom,  by  his  behav- 
ior, by  natural  expression  of  countenance  or  by  utterances  of  pain ; 
the  same  rule  is  applicable  when  the  mind  is  that  part  of  the  body 
which  suffers,  and  the  best  way  to  show  such  pain,  or  suffering  is 
by  these  facts.^^ 

§  587.     Same  continued — aggravation  of  suffering. 

There  may  be  circumstances  which  would  have  a  tendency  to 
aggravate  mental  suffering  and  angTiish ;  and  when  this  is  the  case, 
the  facts  tending  to  show  it  should  be  adniitted.  Thus,  where  the 
plaintiff  was  prevented  from  being  present  at  the  deathbed  of  his 
mother,  by  a  delayed  message  announcing  her  serious  illness,  he  may 
be  allowed,  in  an  action  brought  to  recover  damages  for  mental  suf- 
fering in  consequence  of  such  delay,  to  show  that  he  was  her  favorite 
son.^^  The  great  affection  existing  between  the  plaintiff  and  the  per- 
son who  died  would  naturally  create  a  gi'eater  injury  to  the  mind  of 
the  former,  if  he  was  prevented  from  being  present  during  the  latter's 
last  moments  in  this  world,  and  any  facte  which  tend  to  show  this 
relationship  should  be  brought  before  the  jury.  The  court,  in  ren- 
dering an  opinion  on  this  point,  said:  "While  juries  in  the  absence 
of  any  evidence  on  the  subject  may  act  upon  their  own  knowledge  of 

^"West.  U.  Tel.  Co.  v.  Henderson,  89  Compare  West.  U.  Tel.  Co.  v.  McLoud, 

Ala.   510,  7   So.   419,   18  Am.   St.   Rep.  22    S.    W.    (Tex.)    988;    West.   U.   Tel. 

148;    West.   U.   Tel.   Co.   v.    Carter,   20  Co.    v.    Adams,    75    Tex.    535,    16    Am. 

S.   W.    (Tex.)    834;    Mentyer   v.   West.  St.  Rep.  920. 

U.  Tel.  Co.,  93  Iowa  752,  28  L.  R.  A.  ^i  ^yggt    u   Tel.  Co.  v.  Lydon,  82  Tex. 

72,   62  N.  W.   L  57  Am.  St.  Rep.   294.  3G4,    18   S.   W.   701. 


§    588]  MEASURE   OF   DAMAGES.  563 

the  affection  existing  between  a  mother  and  son,  still  the  admission 
<»f  evidence  upon  the  subject  may  be  proper,  and  we  cannot  say  that 
])roof  of  a  special  regard  felt  and  shown  by  a  mother  for  one  of  her 
children  may  not  be  properly  considere<l  by  the  jury,  in  connection 
witli  other  circumstances,  in  estimating  the  feelings  of  the  child  for 
the  parent.''  '-  But,  in  such  cases,  it  is  notproper  to  admit  evidence  in 
which  it  is  attempted  to  be  shown  that  the  mother  was  making  fre- 
(juent  inquiries  of  the  son's  whereabouts  and  entreating  that  he  be 
lu'ouglit  to  her  bedside.^^  While  this  may  be  a  means  of  showing  the 
affection  of  the  mother  for  the  son,  yet  if  such  facts  are  not  imparted 
to  tlie  latter  until  after  the  mother's  death  the  suffering  endured  by 
the  son  by  being  prevented  from  being  with  her  iDcfore  death  would 
not  l)e  any  greater,  and  ^'a  deathbed  scene  is  reproduced  of  such  pecu- 
liar pathos  that  its  influence  would  be  almost  sure,  under  a  ruling 
;i(liiiitting  it  as  proper  subject  for  consideration,  to  usurp  the  atten- 
tion of  the  jury  to  the  exclusion  of  those  considerations  which  alone 
should  control  their  action."  ^■^ 

§  588.     Same  continued — sickness  as  a  result — admissible. 

In  those  jurisdictions  where  a  person  is  allowed  to  recover  damages 
for  mental  suffering  in  consequence  of  a  message  not  being  properly 
delivered  announcing  the  serious  illness  of  a  relative,  or  where  he  is 
]3revented  from  l>eing  at  the  burial  by  such  delay,  he  may  show  as  a 
result  of  such  suffering  that  he  became  ill  and  was  compelled  to  take 
his  lied  and  incurred  medical  expenses.^^  This  is  merely  a  means  of 
<howing  the  extent  of  his  suffering;  and,  of  course,  the  greater  the 
suffering,  the  greater  should  be  the  compensation  therefor.  If  there 
were  other  causes  intervening  which  produced  this  result,  of  course 
this  could  not  be  considered  in  determining  the  amount  of  damages  to 
]>e  recovered :  yet  it  may  be  admitted  to  show  that  the  intervening 
cause,  and  not  the  delay  of  the  message,  was  the  proximate  cause  of 

"Id.  Tox.    o80.    74    S.    W.    751,    97    Am.    St. 

"  West.   r.  Tel.  Co.  v.  Stiles.  89  Tex.  Hep.   936. 
.{12.  34  S.  \y.  438.     Compare  West.  U.  "  Sim.Tnon   v.   West.    U.    Tel.    Co..   63 

Tel.    Co.    V.    Evans.    1    Tex.    Civ.    App.  S.   C.   425,   57   L.   R.   A.   607,  41    S.   E. 

297,  21   S.  W.  260.  7(i3;    West.    U.   Tel.   Co.   v.   Sweetman. 

^MVest.    U.    Tel.    Co.    v.    Waller.    W  10   Tex.   Civ.   App.   435. 


564  TELEGRAPH  AND  TELEPHONE   COMPAIs^IES.  [<§>    588 

the  suffering.  The  mental  suffering  and  anguish  must  be  the  natural 
and  proximate  result  of  the  negligence  of  the  company  and  such  as 
was  contemplated  by  the  parties  at  the  time  the  contract  was  made  as 
would  be  the  most  natural  and  probable  result  of  such  breach.  In 
such  cases,  there  can  be  no  recovery  for  ''physical  suffering"  resulting 
from  plaintiff's  being  kept  from  his  relative's  funeral,  in  the  absence 
of  specific  proof  of  such  suffering  as  a  result  of  the  deprivation.^*^ 

§  589.     Same  continued — matters  of  defense — want  of  affection. 

TelegTaph  companies,  where  actions  are  brought  against  them  to 
recover  damages  for  mental  suffering,  may  use  any  defense  which 
tends  to  show  that  the  mind  was  not  injured  or  impaired.  The 
greatest  among  any  defenses  in  this  respect  is  that  there  was  no  af- 
fectionate feelings  entertained  by  the  plaintiff  for  the  person  about 
whom  the  message,  which  is  delayed,  concerns.  It  seems  that  the 
grief  of  a  loss  of  one,  or  a  failure  to  see  such  person  in  his  last  mom- 
ents, or  to  be  present  to  tender  the  last  respect  to  the  dead,-  affects 
more  directly  the  mind  than  any  other  part  of  the  body ;  and,  so,  if 
there  is  no  affectionate  feelings  for  such  person,  the  mind  cannot  be- 
come impaired  or  injured  by  being  deprived  of  any  of  these  pleas- 
ures. So,  it  has  been  held,  that  the  company  may  show,  as  a  defense 
in  an  action  brought  bv  the  father  for  damages  for  mental  suffering-, 
in  consequence  of  a  delayed  message  announcing  the  serious  illness 
of  his  daughter,  that  he  had  abandoned  his  family  and  was  living 
apart  from  them.^'''  We  think  that,  where  such  damages  are  allowed, 
if  there  is  any  affectionate  feelings  entertained  by  the  father  for  the 
daughter,  he  should  on  proof  of  such  fact,  be  compensated  for  the  in- 
jured feelings  which  were  endured.  In  one  case,  the  company  at- 
teonpted  to  prove  that  the  plaintiff,  a  grandmother  of  the  child  about 
whom  the  message  concerned,  had  a  number  of  grandchildren — 
among  whom  her  affection  was  divided — but  the  court  held  that  the 
evidence  was  irrelevent.^^ 

"West.  U.  Tel.  Co.  v.  Thompson,   IS  ^s  West.   U.   Tel.   Co.   v.    Crocker.    1-35 

Tex.  Civ.  App.  609,  4.5  S.  W.  429.  Ala.  492,  .3.3  So.  45.  59  L.  R.  A.  398. 

^''West.    U.   Tel.    Co.     v.     Terrell,     10 
Tex.  Civ.  App.  GO,  30  S.  W.  70. 


<§,    590]  .MEASURE  OF  DAMAGES.  565 

§  590.     Relationship  material. 

It  was  shown  in  another  part  of  this  work  that  in  order  to  hold  a 
telegraph  company  liable  in  damages  for  mental  snffering,  caused  by 
a  message  announcing  the  dangerous  illness,  or  the  time  set  for  the 
funeral  services  of  a  certain  person,  being  delayed  and  thereby  pre- 
venting the  addressee  from  being  present  with  said  person  before 
death,  or  at  the  burial,  the  company  must  have  had  some  information 
of  the  fact  that  there  was  a  close  relationship  between  these  two  per- 
sons. It  necessarily  follows,  therefore,  that  there  must  be  a  relation- 
ship existing  between  these  two  parties  before  damages  for  mental 
suffering  can  Ije  recovered.  Whenever  a  message  announcing  the  ser- 
ious illness,  death  or  time  of  funeral  of  a  person  related  in  consangui- 
nity to  the  addressee  is  delayed,  mental  anguish  and  suffering  will  be 
presumed,  when,  through  the  fault  of  the  company,  he  is  prevented 
from  being  present  at  the  bedside  or  funeral  of  such  relative;  and 
it  is  not  necessar)'  for  him  to  prove  such  injurv.^^  While  we  perhaps 
cannot  detect  with  the  eye  any  change  or  difference,  it  is  a  natural 
result  that  the  whole  tree  is  affected  when  it  loses  one  of  its  branches. 
It  is  according  to  nature  that  such  shall  be  the  result.  The  same  rule 
applies  to  man.  If  one  of  his  limbs  are  lost,  the  whole  body  becomes 
more  or  less  affected.  It  is  a  presumption  and  one  not  necessary  to 
l>e  proven.  This  illustration  may  be  farfetched,  but  it  is  a  fact, 
nevertheless,  that,  when  one  member  of  a  family  suffers,  or  of  whom 
we  are  deprived,  we  suffer  as  a  natural  consequence;  and  when  the 
relation  is  close,  the  fact  does  not  have  to  be  proven.  It  follows,  there- 
fore, that  if  there  is  not  a  relationship,  especially  by  blood,  the  pre- 
sumption of  mental  suffering  cannot  be  maintained,  but  same  must 
l)e  shown. ^"^  It  seems,  however,  that  if  there  is  an  affectionate  feel- 
ing existing  between  the  parties,  although  they  may  not  be  related 

=">  West.  r.  Tel.  Co.  v.  Coffin.  88  Tex.  '^  West.    U.    Tel.    Co.    v.  Ayres,    131 

94,   30   S.    W.    896;    West.    Tel.    Co.   v.  Ala.    391;    Robinson   v.    West.    U.    Tel 

Eandalls.  34  S.  W.    (Tex.)    447:   West.  Co.,  C8  S.  W.  656,  24  Ky.  L.  Rep.  451 

U.   Tel.  Co.  V.  Porter,  26  S.    W.   866;  See,  also,  West.  U.  Tel.   Co.  v.  Steen 

West.  U.  Tel.  Co.  v.  Mcleod.  22  S.  W.  beiffen,   107  Ky.  469,  54    S.    W.    829 

988;    West.  U.   Tel.   Co.  v.   Thompson,  Morrow  v.  West.  U.  Tel.  Co.,  107  Ky 

18  Tex.   Civ.  App.   609,  45  S.  W.  429;  517,  54  S.  W.  853;   Davidson  v.  West. 

West.  U.  Tel.  Co.  v.  Crocker,  135  Ala.  U.  Tel.  Co.,  54  S.  W.  830. 
492,  33  So.  45,  59  L.  R.  A.  398. 


566  TELEGKAPH  AXD  TELEPHONE   COMPANIES.  [§    590 

by  blood,  proof  may  be  admitted  showing  this  fact,  but  it  will  never 
be  presumed  that  mental  suffering  and  anguish  has  been  sustained. 

§  591.     Nature  of  damages. 

As  will  be  seen  from  a  perusal  of  the  preceding  sections,  actions 
brought  to  recover  damages  for  mental  suffering  relate  to  messages 
announcing  the  serious  illness,  death  or  time  of  funeral  services  of 
some  relative  of  the  addressee,  and  are  intended  to  bring  him  to  the 
bedside  or  funeral  of  such  person,  or  to  comply  with  the  information 
in  other  ways  to  his  interest.*^  ^  The  anxiety  to  be  present  on  such  oc- 
casion is  greater  than  any  that  can  ever  befall  a  man,  as  during  these 
short  moments  wa  experience  that  which  can  never  be  witnessed  again 
while  on  earth ;  for  this  reason,  cases  of  this  nature  most  always  come 
upon  the  ground  of  failure  to  deliver  such  messages  in  time.  Cases, 
however,  have  been  brought  to  recover  damages  for  a  failure  to  deliv- 
er other  kinds  of  messages  where  they  are  of  information,  and  not  cal- 
culated or  intended  to  affect  the  movement  of  the  addressee.''^  Thus, 
where  a  father  is  prevented  from  stopping  the  marriage  of  his  daugh- 
ter by  a  delay  in  delivering  a  message  to  that  effect,  he  was  allowed 
to  recover  damages  for  mental  suffering  resulting  from  an  undesir- 
able marriage,*^^  although  he  could  not  recover  for  the  mental  suf- 
fering of  his  wife,  unless  it  appeared  to  the  company  that  he  had  a 
wife. 

§  592.     Actions  do  not  survive — limitation. 

Actions  against  telegra])h  companies  for  damage?  for  anental  suf- 
fering are  for  "an  injury  to  the  person,"  within  the  rule  that  such 
actions  do  not  survive,  and  the  right  of  the  action  dies  with  the  per- 
son.^^     His  injuries  are  such  as  none  other  can  suffer,  or,  if  they  suf- 

'"■  West.    L'.  Tel.   Co.   v.   Mcllvoy,   107  '■"  West.  U.  Tel.  Co.  v.  Proctor.     And 

Ky.   633.  55  S.  W.  428;   West.  IT.  Tel.  as  will  be   seen  it  has  been  applied  to 

Co.  V.   Halo,   11   Tex.  Civ.  Apj).   79,   32  other  causes:      §    577. 
S.  W.  814.  "*  Morton   v.    West.    I'.   Tel.   Co.,    130 

"^'West.  U.  Tel.  Co.  v.  Odom,  21  Tex.  N.    C.    299,    41    S.    E.    484;    Fitzgerald 

Civ.  App.  537.  52  S.  W.  632;  West.  V.  \.  West.  U.  Tel.  Co.,  15  Tex.  Civ.  App. 

Tel.    Co.   V.    Hines,   22   Tex.    Civ.   Ap]..  143,  40  S.  W.  421. 
315,  54   S.  W.   627. 


§  593] 


MEASURE    OF    DAMAGES. 


Ob  ( 


fer  samo,  the  injury  is  too  remote  for  damages  to  be  recovered.  Tho 
sufferer  himself  is  the  only  person  who  can  maintain  a  suit  thereon. 
There  are  statutes,  however,  which  confer  the  right  to  the  husband 
for  the  benefit  of  the  wife,  or  the  parent  for  the  child ;  but  this  is  the 
ease  only  when  the  injured  person  still  lives.  These  actions  also  fall 
within  the  statutes  of  limitation,  as  "actions  for  the  injuries  to  the 
person.  "^^ 

§  593.     Damages  for  mental  suffering — doctrine  denied. 

While  it  is  held,  in  some  few  states,  that  damages  may  be  recovered 
for  raental  suffering  unaccompanied  by  a  pecuniary  loss  or  physical 
injurv;  yet  the  weight  of  authority  hold?  a  contrary  view.^^  With 


"Kelley  v.  West.  U.  Tel.  Co..  17 
Tex.  Civ^  App.  344,  43  S.  W.  532: 
Martin  v.  West.  U.  Tel.  Co.,  6  Tex. 
Civ.  App.  619,  26  S.  W.  136. 

"  United  States.— Chase  v.  West.  U. 
Tel.  Co.,  44  Fed.  554,  10  L.  R.  A.  464; 
Crasson  v.  West.  U.  Tel.  Co.,  47  Fed. 
544;  Tyler  v.  West.  U.  Tel.  Co.,  54 
Fed.  634;  Gahan  v.  West.  U.  Tel.  Co.. 
59  Fed.  433;  Stansell  v.  West.  U.  Tel. 
Co.,  107  Fed.  668;  McBride  v.  Sunset 
Tel.  Co.,  96  Fed.  81;  West.  U.  Tel.  Co. 
V.  Wood,  57  Fed.  (C.  C.  A.)  471,  21 
L.  R.  A:  706;  Wilcock  v.  Ricliman,  etc., 
R.  Co.,  52  Fed.  (C.  C.  A.)  264,  17 
L.  R.  A.  804;  West.  U.  Tel.  Co.  v. 
Sklar,  126  Fed.  (C.  C.  A.),  295.  Com- 
pare Beasley  v.  West.  U.  Tel.  Co..  39 
Fed.  181. 

A7-kansas. — Poay  v.  West.  U.  Tel. 
Co.,  64  Ark.  538,  43  S.  W.  905,  39  L. 
R.  A.  463. 

Dakota. — Russel  v.  West.  U.  Tel. 
Co.,   3   Dak.   315. 

Florida.  —  International  Ocean  Tel. 
Co.  V.  Saunders,  32  Fla.  434,  14  So. 
148,  21  L.  R.  A.  810. 

Georgia. — Chapman  v.  West.  U.  Tel. 
Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am. 
St.  Rep.  183,  17  L.  R.  A.  430;  Giddens 


V.  West.  r.  Tol.  Co.,  Ill  Ga.  824,  35 
S.   E.   638. 

Illinois.— Wo^t.  U.  Tel.  Co.  v.  Hal- 
tom,  71  111.  App.  63;  North  Chicago 
St.  R.  Co.  V.  Dnebner,  85  111.  App.  602. 
Compare  Logan  v.  West.  U.  Tel.  Co., 
84  111.  468,  holding  that  nominal  dam- 
ages at  least  are  recoverable. 

Indiana. — West.  I'.  Tel.  Co.  v.  Fer- 
guson, 157  Ind.  64.  00  X.  E.  1080,  54 
L.  R.  A.  846,  overruling  Reese  v.  West. 
U.  Tel.  Co..  123  Ind.  294,  7  L.  R.  A. 
583n;  West.  U.  Tel.  Co.  v.  Adams,  28 
Ind.  App.  420.  The  rule  of  the  Reese 
case  had  been  followed  in  West.  U. 
Tel.  Co.  v.  Stratemeier,  6  Ind.  App. 
125;  West.  U.  Tel.  Co.  v.  Newhouse,  6 
Tii.l.  A].]).  434:  West.  I'.  Tel.  Co.  v. 
Ciinic.  S  liul.  App.  364;  West.  U.  Tel. 
Co.  V.  Briscoe.  18  Ind.  App.  22:  West. 
r.  Tel.  Co.  V.  r>r\ant.  17  Ind.  App. 
70;  Wc^t.  r.  Ti'l.  Co.  V.  Todd.  22  Ind. 
App.  701;  West.  U.  Tel.  Co.  v.  Cain, 
14  Ind.  App.  115.  See,  also,  Hadley 
V.  West.  U.  Tel.  Co..   150  Ind.   191. 

Kansas. — ^A'est.  v.  West.  U.  Tel.  Co.. 
.39  Kan.  !>3.  17  Pac.  807.  7  Am.  St. 
Rep.  530. 

Maine. — Wyman  v.  Leavitt,  71  Me. 
227.  36  Am.   Rep.  303. 


568 


TELEGKAPH    AXD   TELEPHONE   COMPANIES. 


[§  593 


all  due  respect  to  the  courts  holding  that  damages  for  such  injuries 
may  be  recovered,  we  are  clearly  convinced  that  the  ground  upon 
which  they  base  their  ojiinion  is  not  of  very  firm  foundation.  We  do 
not  deny  the  fact  that  the  mind  is  injured  to  a  certain  extent  as  a  re- 
sult of  the  breach  of  almost  any  contract,  but  it  is  of  such  peculiar 
nature  that  we  cannot  begin  to  estimate  the  degree  of  suffering  in 
order  to  make  sufficient  compensation  therefor.  The  anxiety  of  the 
mind  is  too  refined  and  vague  in  its  nature  to  be  taken  as  a  subject 
for  pecuniary  consideration.*'''^  It  deals  too  much  in  the  spiritual 
land  and  is  a  matter  that  appeals  to  the  imaginative  powers  of  man 
to  such  an  extent  that  it  becomes  dangerous  to  tamper  with  when  the 
riffhts  of  others  are  involved.  ' 


Minnesota. — Francis  v.  \YePt.  U. 
Tel.  Co.,  58  Minn.  252,  59  N.  W.  1078. 

Mississippi. — West.  U.  Tel.  Co.  v. 
Rogers,  68  Miss.  748,  13  L.  R.  A.  859n. 
9  So.  823,  24  Am.  St.  Rep.  300;  West. 
U.  Tel.  Co.  V.  Watson,  82  Miss.  101; 
Hartzog  v.  West.  U.  Tel.  Co.,  84  Miss. 
448,  105  Am.  St.  Rep.  459,  34  So.  361. 
In  this  state  the  general  rule  has  been 
modified  to  the  extent  that  where  the 
telegraph  company  has  been  guilty  of 
a  willful  wrong  or  such  negligence  as 
amounts  to  a  willful  wrong,  the  plain- 
tiff may  prove  his  mental  anguish  in 
being  prevented  from  being  present  at 
the  deathbed  or  funeral  of  a  relative 
and  have  it  considered  by  the  jury  in 
fixing  exemplary  damages,  although 
there  has  been  no  pecuniary  loss  or 
physical  suffering. 

.Missouri. — Coniiell  v.  West.  U.  Tel. 
Co.,  116  Mo.  34,  22  S.  W.  3.45;  20  L. 
R.  A.  172,  38  Am.  St.  Rep.  575;  Burnett 
v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599; 
Denning  v.  Chicago,  etc.,  R.  Co.,  80  Mo. 
App.  152;  Newman  v.  West.  U.  Tel. 
Co.,  54  Mo.  App.  434. 

New  Yorfc.— Curtin  v.  West.  U.  Tel. 
Co.,  13  N.  Y.  App.  Div.  253,  3  X.  Y. 
Annot.  Cas.  286. 

0;uo.— Morton  v.   West.  U.  Tel.  Co., 


53  Ohio  St.  431,  32  L.  R.  A.  735,  53 
Am.  St.  Rep.  648;  Kline  v.  West.  U. 
Tel.  Co.,  4  Ohio  Dec.  .224,  3  Ohio  M.  P. 
143;  Kester  v.  West.  U.  Tel.  Co.,  4 
Ohio  Cir.  Dec.  410.  8  Ohio  Cir.  Ct.  286. 

Oklahoma. — Butner  v.  West.  U.  Tel. 
Co.,  2  Okla.  234,  37  Pac.  1087. 

Pennsylvania. — Kightlinger  v.  West. 
U.  Tel.  Co.,  20  Pa.  Co.  Ct.  630. 

Sovih  Carolina.- — Lewis  v.  West.  U. 
Tel.  Co.,  57  S.  C.  325,  35  S.  E.  556. 
Tlie  rule  in  this  state  has  been  changed 
by  statute,  permitting  damages  in  such 
cases.  (§23,  Stat.  748;  Code  (1902), 
Vol.  I,  §  2223.)  This  statute  was  held 
to  be  constitutional  in  Simmons  v. 
West.  U.  Tel.  Co.,  63  S.  C.  429. 

Virginia. — Connelly  v.  West.  U.  Tel. 
Co.,  100  Va.  51.  56  L.  R.  A.  663,  93 
Am.  St.  Rep.  919,  40  S.  E.  601;  Tyler 
v  W^est.  U.  Tel.  Co.,  54  Fed.  634.  In 
this  state  a  statute  was  passed  upon 
the  subject  which  apparently  failed  of 
its    purpose. 

West  Virginia. — Davis  v.  West.  U. 
Tel.  Co.,  46  W.  Va.  48,  32  S.  E.  1026. 

Wisconsin.  —  Summei'ficld  v.  West. 
U.  Tel.  Co.,  87   Wis.   1,  57   N.  W.  973. 

"'Davis  V.  West.  U.  Tel.  Co.,  46  W. 
\'a.   48.  32   S.  E.   1026. 


^    594]  MEASUKE    OF    DAMAGES.  569 

§  594.     When  may  be  basis  of  action — malicious  or  willful  wrong. 

There  are  instauces  where  damages  may  be  recovered  lor  mental 
suffering  disconnected  from  other  losses;  and  yet  this  is  in  the  na- 
ture of  punitive  damages,  or  a  punishment  imposed  on  the  wrong- 
doer. Thus,  if  the  company's  oi^erator  is  guilty  of  such  gross  negli- 
gence in  the  discharge  of  his  duties  as  amounts  to  a  willful  wrong, 
whereby  another  suffers  agony  or  a  distress  of  mind,  the  company 
would  be  liable  in  damages  for  such  wrong.^^  It  is  exacted  of  the 
company  more  to  deter  others  from  committing  other  and  similar  of- 
fenses than  as  a  compensation  for  the  mental  suffering  endured."^ 
If  an  agent  of  a  telegraph  company  should  be  guilty  of  such  gross 
negligence  as  to  indicate  a  w^anton  or  malicious  purpose  in  failing  to 
transmit  and  deliver  a  message,  the  person  injured  thereby  would  be 
entitled  to  exemplary  damages,  although  he  might  not  have  sustained 
any  loss  except  a  worry  and  distress  of  mind.'^"  So,  in  actions  for 
libel  and  slander,  they  will  be  liable  in  damages  to  the  injured  per- 
son, since  in  such  cases  malice  is  an  essential  element.  When,  how- 
ever, the  words  are  not  actionable  per  se,  there  must  be  proof  of  spec- 
ial damages.  If,  on  the  other  hand,  they  are  actionable  per  se,  they 
have  a  sure  tendency  to  degTade  the  citizen  in  the  estimation  of  his 
fellows,  which  results  in  damages  to  his  social  influence  and  business 
efiiciency.'^^  When  this  is  the  case,  it  does  not  devolve  upon  him  to 
prove  other  injuries  except  that  endured  by  the  mind.  The  wrongful 
act  complained  of  may  have  been  done  in  good  faith  but  if  the  subse- 
quent acts  of  the  company  indicate  a  total  disregard  of  the  rights  of 
others,  it  would  still  be  liable.  It  would  be  liable  in  damages  for 
mental  suffering  in  cases  of  assault  or  assault  and  battery.  It  was 
formerly  held  that  a  corporation  could  not  be  guilty  of  a  wrong, 
where  the  element  of  criminal  intent  was  necessary  to  constitute  the 
wrong,  but  this  doctrine  has  long  since  been  refuted. 

•"West.    U.    Tel.    Co.    V.   Rogers,   GS  "Cliainnan   v.   West.   U.   Tel.   Co..  8S 

Miss.   748,  24  Am.   St.  Rep.  300,  9  So.  Ga.  763,   17  L.  R.  A.  430,   15  S.  E.  901. 

823.  13  L.  R.  A.  859n.  30   Am.    St.    Rep.    ISG;    West.    U.    Tel. 

•■"Scott   V.    Jarnague   on   Tel.    S§  417,  Co.   v.    Rogers,    G8   :Miss.    748,   24   Am. 

418:    Southern  Kansas  R.   Co.  v.  Rice,  St.   Rep.   300,   9   So.   823,   13  L.   R.    A. 

38  Kan.  398.  S59n, 

•"West.  V.  West.  U.  Tel.  Co..  39  Kan. 
93.  7  Am.  St.  Rep.  530,  17  Pac.  807. 


570  TELEGRAPH   AND   TELEPHONE    COMPANIES.  ["§    595 

§  595.     Reasons  for  not  allowing  such  damages. 

The  general  rule,  under  the  commou  law,  and  that  followed  by  the 
preponderance  of  authority  is,  that  mental  suffering,  unaccompanied 
by  other  losses  or  injuries,  is  not  sufficient  grounds  upon  which  to 
maintain  an  action  against  a  telegTaph  company  for  the  recovery  of 
damages  therefor,  in  consequence  of  a  negligent  transmission  or 
delivery  of  a  message,  although  it  was  informed  at  the  time  the  mes- 
sage was  accepted  for  transmission  that  mental  angaiish  and  suffer- 
ing would  be  the  result.  The  best  reasons  found  in  our  research  on 
this  subject  were  given  by  Judge  Lurton  in  a  dissenting  opinion, 
and  as  they  are  so  clearly  and  satisfactorily  stated,  we  take  pleasure 
in  quoting  them  at  this  place :  "The  reason  an  independent  actior 
for  such  damages  cannot  and  ought  not  to  be  sustained  is  found  in 
the  remoteness  of  such  damages,  and  in  the  metaphysical  character 
of  such  an  injurs'  considered  apart  from  physical  pain.  Such  injuries 
are  generally  more  sentimental  than  substantial.  Depending  largely 
upon  physical  and  nervous  condition,  the  suffering  of  one  under  pre- 
cisely the  same  circumstances  would  be  no  test  of  the  sufferings  of 
another.  Vagiie  and  shadowy,  there  is  no  possible  standard  by  which 
an  injury  can  be  justly  compensated  or  even  approximately  measur- 
ed. Easily  simulated  and  impossible  to  disprove,  it  falls 
within  all  the  objections  to  speculative  damages,  which  are  un- 
iversally excluded  because  of  their  uncertain  character.  That  dam- 
ages so  imaginary,  so  metaphysical,  so  sentimental,  shall  be  ascertain- 
ed and  assessed  by  a  jury  with  justness,  not  by  way  of  punishment  to 
the  defendant,  but  as  a  mere  compensation  to  the  plaintiff,  is  not  to 
be  expected.  That  the  gTief  natural  to  the  death  of  a  loved  relative 
shall  be  separated  from  the  added  grief  and  anguish  resulting  from 
delayed  information  of  such  mortal  illness  or  death,  and  compensation 
given  for  the  latter  only,  is  the  task  imposed  by  the  law,  as  determin- 
ed by  the  majority.  ...  It  is  legitimate  to  consider  the  evils  to 
which  such  a  precedent  logically  leads.  Upon  what  sound  legal  con- 
siderations can  this  court  refuse  to  award  damages  for  injuries  to  the 
feelings,  mental  distress  and  humiliation  where  such  injury  results 
from  the  breach  of  any  contract?  Take  the  case  of  a  debtor  who 
agrees  to  return  the  money  borrowed  on  a  certain  day,  who  breaches 
his  agreement  willfully  with  knowledge  that  such  breach  on  his  part 


«§,    596]  MEASURE  OF   DAMAGES.  571 

will  proljably  result  in  the  financial  vuin  and  dishonor  of  his  disap- 
pointed creditor.  Why  shall  not  such  a  debtor,  in  addition  to  the 
debt  and  the  interest,  also  compensate  his  creditor  for  this  ruin,  or 
at  least  for  his  mental  suffering?  .  .  .  Fpon  what  principle  can  we 
longer  refuse  to  entertain  an  action  for  injured  feelings  consequent 
upon  the  use  of  abusive  and  defamatory  language  not  charging  a 
<!rime  or  resulting  in  special  pecuniary  damages  ?  Mental  distress 
is  or  may  be  in  some  cases  as  real  as  bodily  pain,  and  it  as  certainly 
results  from  language  not  amounting  to  an  imputation  of  crime,  yet 
such  actions  have  always  been  dismissed  as  not  authorized  by  the  law 
^s  it  has  come  down  to  us,  and  as  it  has  been  for  all  times  adminis- 
tered."'2 

§  596.     Same  continued — other  reasons — nominal  damages. 

Some  of  the  courts  which  hold  the  first  view  commented  upon — 
that  damages  may  be  recovered  for  mental  anguish — claim  that  there 
must  be  nominal  damages,  in  order  to  recover  damages  for  mental 
anguish,  but  this  fact  cannot  be  entertained,  since,  nominal  damages 
necessarily  deny  any  further  recovery.  The  inconsistency  of  such 
a  palpable  reason  is  too  great  to  be  considered.  If  damages  for  mental 
suffering  may  be  recovered  where  there  is  no  other  loss,  then  there  is 
no  need  of  the  injured  person  having  to  suffer  nominal  damages ;  but 
if  it  is  necessary  that  he  should  have  sustained  nominal  damages, 
however  slight  they  may  be.  then  damages  cannot  be  recovered  for 
mental  suffering  unacconi])ani(-(l  l)y  other  loss."^   But  there  must  be  a 

'- Wadsworth   v.   West.  U.   Tel.      Co..  in  the  past.     If  their  foundation  prin- 

86  Tenn.  695,  8   S.  W.  574,  6  Am.  St.  ciple  be  sanctioned,  they  are  likely  to 

Rep.  875.  multiply  indefinitely.     Nowhere  can  be 

"  Chapman  v.   West.   U.  Tel.  Co.,  88  found   any   satisfactory    suggestion     of 

Ga.  763,  17  L.  R.  A.  430.  15  S.  E.  901.  a    principle     to     restrain     such     suits 

30  Am.  St.  Rep.   190.  within    reasonable   limits.      IIow    nuicli 

In  this  case  the  court  said:  "The  mental  suffering  shall  be  necessary  to 
case  West.  U.  Tel.  Co.  v.  Rogers.  68  constitute  a  cause  of  action?  Let 
Miss.  748.  9  So.  823.  13  L.  R.  A.  some  of  tlie  courts  favoring  recover}- 
859n,  24  Am.  St.  Rep.  300,  suggests  measure  out  the  quantity.  If  tliey  are 
that  the  doctrine  it  opposes  would  unable  to  do  this,  then,  on  principle, 
open  up  a  new  field  of  litigation.  This  any  mental  suffering  would  be  action- 
is  worthy  of  remark.  Except  in  Tex-  able,  the  degree  of  it  merely  determin- 
as,  suits  like  this  have  l)oon  infrequent  ing  the     quantum     of     damages.     The 


572 


TELEGKAPII  AICD  TELEPHONE   COMPANIES. 


[^   50G 


greater  loss  than  mere  nominal  damages  in  order  to  recover  for  the 
worry  or  distress  of  the  mind.  If  pecuniary  loss  has  been  sustained, 
dainages  over  and  above  this  loss  should  in  some  instances,  be  award- 
ed in  the  nature  of  punitive  damages.  In  fact  and  in  truth  there  are 
but  one  class  of  cases — in  the  absence  of  malice  and  willful  wrong'^^ — 
in  which  damages  should  be  awarded  for  mental  suffering  and  ang- 
uish. Where  both  the  mind  and  body  suffers  from  the  same  cause, 
damages,  in  a  sense,  should  be  awarded  for  both.  ''The  mind  is  as 
much  a  part  of  the  body  as  the  bones  and  muscles,  and  an  injury  to 
the  body  includes  the  whole,  and  its  effects  are  inseparable."  ^^ 
'Where  mental  pain  is  therefore  an  element  of  physical  pain ;  or  is  a 
necessary  consequence  of  physical  pain ;  or  is  the  natural  and  proxi- 


cases  do  suggest  as  a  restriction  that 
the  plaintilf  must  be  entitled  to  dam- 
ages on  some  other  ground,  or  to  nom- 
inal damages  at  least;  in  other  words, 
there  must  be  an  infraction  of  some 
legal  right  for  the  plaintiff;  then  the 
damages  may  be  increased  for  the  men- 
tal suffering.  If  the  plaintiff  must  be 
entitled  to  substantial  damages  on 
other  grounds,  then  mental  suffering 
alone  is  not  the  ground  for  damages, 
which  is  the  very  point  contended  for. 
To  speak  of  the  right  to  nominal  dam- 
ages as  a  condition  for  giving  sub- 
stantial damages  is  a  palpable  con- 
tradiction. To  give  nominal  damages 
necessarily  denies  any  further  recov- 
ery. Tt  is  said  there  must  be  an  in- 
fraction of  some  legal  right,  attended 
with  mental  suffering,  for  this  kind 
of  damages  to  be  given.  If  this  be  true 
law,  why  is  not  mental  distress  always 
an  item  to  be  allowed  for  in  the  dam- 
ages? We  have  seen  that,  though  al- 
lowed in  some,  it  is  in  many  cases  ex- 
cluded. Every  man  knows  that  the 
violation  of  any  material  right  is  nec- 
essarily productive  of  more  or  less 
pain  of  mind.  Then  why  not  compen- 
sate it  in  every  instance  where  a  right 


has  been  violated?  In  no  case  what- 
ever are  damages  recoverable,  unless 
a  legal  duty  has  been  broken.  By  the 
test  proposed,  it  is  first  granted  that 
mental  suffering  alone  is  not  action- 
able; then  a  case  arises  in  which 
there  is  no  actionable  damages,  unless 
mental  suffering  be  such,  when  it  is 
simply  assumed  that  it  is  actual  dam- 
ages. Throwing  away  the  lame  pre- 
tense of  basing  recovery  or  mental  suf- 
fering upon  an  othenvise  harmless 
transgression,  and  stripping  it  of  all 
false  form  and  confusing  technicality, 
i1  is  manifest  that  to  allow  such  a  re- 
covery, in  real  substance,  is  an  effort 
to  protect  feeling  by  legal  remedy." 

'*  Where  personal  security  or  per- 
sonal liberty  is  infringed,  the  mental 
suffering  seems  to  be  a  necessary  com- 
ponent in  the  injury:  Chapman  v. 
West.  U.  Tel.  Co.,  88  Ga.  763,  17  L. 
E.  A.  430,  15  S.  E.  901,  30  Am.  St. 
Epp.  187.  But  mental  suffering  alone 
is  not  such  an  infringement  of  the 
rights  as  to  justify  damages  therefor: 
Id^ 

••Connell  v.  West.  U.  Tel.  Co.,  Ill) 
Mo.  34,  22  S.  W.  345,  20  L.  E.  A. 
172,  38  Am.  St.  Eep.  584. 


§    598]  MEASURE    or    DAMAGES.  573 

mate  result  of  tlio  ])hysical  injury,  then  damages  for  mental  suffering 
may  be  recovered  where  the  injury  had  been  caused  by  the  negligenr^e 
of  defendant.'"  Thus,  where  the  message  is  a  summons  to  a  physician 
to  attend  a  sick  person,  but  on  account  of  the  company  negligently 
delaying  the  message  the  "physician  failed  to  reach  the  patient,  in 
consequence  of  which  the  patient  suffers  great  physical  and  mental 
pain  and  anguish,  in  such  cases  damages  should  be  awarded  for  the 
mental  suffering. 

§  597.     Same  continued — mental  suffering  following  physical  pain. 

It  seems,  in  those  cases  where  damages  may  be  recovered  for  men- 
tal suffering  accompanying  physical  pain,  that  the  former  suffering 
must  be  an  element  of  the  latter  and  not  the  cause  of  it.  Thus,where 
fright  caused  by  the  negligence  of  the  defendant  was  so  great  and 
sudden  as  to  immediately  produce  physical  sickness  and  suffering, 
it  was  held  that  damages  could  not  be  recovered.  The  principle  upon 
which  this  was  held  w^as,  that  for  the  mere  mental  suffering  there 
could  be  no  recovery,  and  the  physical  injury  was  too  remote,  being 
unlikely  to  result  from  the  wrongful  act."^'  It  was  held  in  another 
case,  however,  that  fright  causing  nervous  convulsions  and  illness 
was  a  ground  for  damages.  But  even  here,  the  action  was  sustained 
on  account  of  the  physical  injury  as  the  proximate  result  of  the  neg- 
ligent act  and  not  on  account  of  the  intervening  mental  suffering, 
conceding  that  this  alone  would  not  warrant  recovery.'^^ 

§  598.     Conflict  of  law — with  respect  to  mental  damages. 

We  have  had  an  op[)ortunity  elsewhere  to  discuss,  in  a  general 
way,  the  law  applicable  to  contracts  made  for  the  transmission  and 
delivery  of  messages  sent  from  one  state  to  another,  and  where  there 
was  a  conflict  of  the  laws  in  respect  to  such  transmission  in  the  two 
states.     So,  we  shall  at  this  place  say  something  on  the  subject  with 

™  West  V.  West.  U.  Tel.  Co.,  39  Kan.  L.    1\.   A.    CiOGn.   23   Atl.   340 :    Lehman 

93,  7  Am.  St.  Rep.  533.  v.  Brooklyn,  etc.,  R.  Co.,  47  Hun  355; 

"Victorian  R.  Co.  v.  Coultas.  L.  R.  Allsop  v.  Allsop,  5  Hurl.  &  N.  534. 
13   App.   C.   222;    Fox  v.   Borkey.    12(1  •»  Purcell    v.    St.    Paul    City    R.    Co., 

Pa.    St.    1G4,    17   Atl.     G04 ;     Ewing    v.  50  X.  W.    (:Minn.)    1034. 
Pittsburg,  etc.,  R.  Co.,  147  Pa.  40,  14 


574:  TELEGKAPH  AND  TELEPHONE  COMPANIES.  ['§>    598 

respect  to  the  recovery  of  damages  for  mental  suffering,  wliere  such 
damages  are  allowed  in  one  state  and  not  in  the  other.  It  is  very  of- 
ten the  case  that  messages  are  sent  from  one  state  in  which  such  dam- 
ages are  allowed,  into  another  where  such  are  not  permitted  to  be  re- 
covered; and  the  question  which  presents  itself  under  these  circum- 
stances is,  By  what  laws  should  the  contract  of  sending  be  enforced  ? 
The  general  rule  on  this  subject  is  that  the  laws  of  the  state  in  which 
the  contract  was  made,  or  is  to  bo  performed,  should  control,  unless  it 
is  understood  that  those  of  the  other  should  control.  Under  the  rul- 
ings of  the  courts  in  those  states  which  permit  a  recovery  of  damages 
for  mental  anguish  or  suffering,  such  damages  may  be  recovered  for 
the  negligent  transmission  or  delivery  of  a  message  sent  into  these 
states  from  those  which  refuse  to  allow  such  damages."^  The  same 
rule  applies  where  the  messages  are  sent  from  the  states  to  those 
which  do  not  permit  such  recovery,  when  the  action  is  brought 
in  the  former  states.  So,  also,  damages  may  be  recovered  in 
the  state  where  the  message  is  sent,  although  it  is  to  be  delivered  in 
a  state  which  does  not  allow  a  recovery  of  such  damages.^*'  But  if 
both  the  states,  from  and  to  which  the  message  is  sent,  refuse  to  allow 
damages  for  mental  suffering,  such  cannot  be  recovered,  although  the 
suit  is  brought  in  a  state  which  does  allow  such  damages,  and  one 
though  which  the  company  has  a  line.^^  It  seems  that  the  statutes, 
in  those  states  permitting  a  recovery  of  such  damages,  raise  the  duty 
of  these  companies  above  that  assumed  in  the  contract  of  sending, 
and  base  their  reasons  upon  the  fact  that  a  public  duty  has  been  vio- 
lated and  for  which  damages  may  be  recovered  either  at  the  place  of 
sending  or  receiving.  Mr.  Thompson  said,  in  discussing  this  partic- 
ular subject:  "'The  true  view  which  seems  to  sustain  the  right  of  ac- 
tion in  the  receiver  of  the  message,  or  in  the  person  addressed,  when 
it  is  not  delivered,  is  one  which  elevates  the  question  above  the  plane 
of  mere  privity  of  contract,  and  places  it  where  it  belongs,  upon  the 
public  duty  which  the  telegraph  company  owes  to  any  person  bene- 

""Gray  v.   West.    U.    Tel.     Co..     108  Co.   v.    V\'aller,   74    S.    W.    (Tex.)    752, 

Tenn.  39,  64  S.  W.   1063,  56  L.  R.  A.  reversing  72  S.  W.  264;  West.  U.  Tel. 

301n,  91   Am.  St.  Rep.  706;   West.  U.  Co.  v.  Cooper,  29  Tex.  Civ.  App.  591. 

Tel.  Co.  V.  Blake,  68  S.  W.   (Tex.)  526.  ^Thomas   v.   West.   U.    Tel.    Co.,    25 

«>  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  Tex.  Civ.  App.  398,  61  S.  W.  501. 
C.   603,   45    S.   E.    938;    West.   U.    Tel. 


<§,  5*j9]  measuke  of  damages.  575 

ficially  interested  in  the  message,  whether  the  sender  or  his  principal, 
where  he  is  agent,  or  the  receiver,  where  he  is  agent."  ^" 

§  599.     Rule  declared  by  statutes. 

In  concluding  this  chapter,  we  beg  leave  to  make  some  suggestive 
remarks  in  regard  to  this  very  important  subject.  The  reason  that 
the  common  law  rule  has  Ix'cn  adhered  to  by  not  allowing  a  recovery 
of  damages  for  mental  suffering  and  anguish  unaccompanied  by  other 
losses,  has  doubtless  had  the  tendency  to  cause  these  companies, 
through  their  employees,  to  be  more  derelict  in  their  duties.  What 
we  desire  to  say,  is,  that  there  should  be  some  means  by  which  this 
failure  of  duty  on  their  part  might  be  prevented.  As  has  been  seen, 
by  following  the  rule  of  the  common  law,  there  can  never  be  a  remedy 
exercised ;  then  the  only  way  through  which  the  same  may  be  reached 
is  by  some  statutory  amendment  to  the  rule  of  the  common  law. 
There  are  statutes  adopted  in  some  states,  and  which  are  discussed  in 
another  part  of  this  work,  declaring  the  right  to  recover  such  dam- 
ages. ^\jid  while  it  seems  that  the  courts  in  these  states  take  cogni- 
nance  of  the  rule  laid  down  in  the  So  Relle  case,  yet  their  decisions 
rest  principally  upon  the  statutes  under  which  the  action  is  brought.®^ 
The  constitutionality  of  these  statutes  was  tested  in  South  Carolina, 
and  it  was  there  held  that  they  were  not  in  conflict  with  the  constitu- 
tion of  that  state. ^^  We  do  not  desire  to  be  imderstood  as  saying 
that  we  altogether  approve  of  the  nature  of  these  statutes ;  but  we  do 
most  earnestly  approve  the  spirit  and  purpose  for  which  they  were 
adopted.  While  there  should  be  some  check  placed  on  these  companies 
for  failing  to  discharge  their  duties  in  regard  to  the  transmission  of 
such  messages,  which  we  have  been  discussing,  yet  we  are  unable  just 
now  to  make  a  suggestion  as  to  how  it  may  be  done  by  statutory-  laws, 
unless  it  is  done  by  some  kind  of  a  statutory  penalty. 

"Thompson   on   the    Law    of    Elect.,  *^  Simmons  v.   West.   U.  Tel.   Co..   G3 

§  427.  P.   C.   425,   57   L.  R.   A.  607,  41   S.   E. 

"Wadsworth  v.  West.    U.    Tel.    Co..  .521.      See,   also.    Butler    v.     West.    U. 

86  Tenn.  695,  S  S.  W.  574,  6  Am.  St.  Tel.   Co.,   62   S.   C.   222.   40   S.   E.   162, 

Eep.  8G4.  89  Am.   St.  Rep.  893. 


CHAPTER  XXV. 

DAMAGES  CONTINUED— EXEMPLARY  OR  PUNITIVE- 
EXCESSIVE  AND  NOMINAL. 

§  600.  In  general — meaning  of  term. 

601.  Same  as  applied  to  corporations. 

602.  Done  by  agents  and  employees — malice. 

603.  Whether  a  question  of  fact  or  law. 

604.  The  purpose  of  such  damages. 

605.  Assault  and  battery. 

606.  Libel. 

607.  Malicious  prosecution. 

608.  Trespass — accompanied  with  malice. 

609.  Negligence — question  for  jury. 

610.  Same  continued — against  telegraph  companies. 

611.  Same  continued — actual  damages. 

612.  Excessive  damages. 

613.  When  rule  invoked. 

614.  Same  continued — mental  suffering — excessive. 

615.  Same  continued — not  excessive. 

616.  Nominal  damages. 

§  600.     In  general — meaning  of  term. 

Having  discussed  at  some  length  in  the  preceding  chapters  the 
measure  of  damages  arising  in  different  cases  brought  against  tele- 
graph companies,  we  shall  now  say  something  further  in  regard  to  the 
same  subject,  but  more  particularly  with  respect  to  the  kinds  and 
amount  of  damages;  and,  first,  we  shall  discuss  such  as  are  exem- 
plary or  punitive,  or  such  as  are  imposed  on  these  companies  by  way 
of  punishment.  Punitive,  vindictive  and  exemplary  damages  are 
synonymous  terms  in  legal  contemplation.^  Exemplary  damages  ap- 
ply to  those  wrongs  which,  beside  the  violation  of  a  right  or  the  act- 
ual damages  sustained,  import  insult,  fraud  or  oppression,  and  are 
injuries  inflicted  in  the  spirit  of  wanton  disregard,  and  not  merely 
injuries.^    While  there  has  been  some  discussion  between  law-writers 

*  Herfurth    v.    Washington,   6    D.    C.  74  Am.  Dec.  406;  Bixby  v.  Dunlap,  56 

99;      Lowry    v.    Coster,    91     111.     182;  N.  H.  456,  22  Am.  Rep.  475. 

Koemer  v.  Oberly,  56  Ind.  284,  26  Am.  "New  Orleans,  etc.,  R.  Co.  v.  Stath- 

Rep.  34;  Chiles  v.  Drake,  2  Mete,  146,  am,  42  Miss.   G07,  97    Am.    Dec.    478; 

(576) 


^  600] 


MEASURE  OF  DAilAGES. 


577 


as  to  whether  this  kind  of  damages  was  intended  as  a  personal  pun- 
ishment to  the  offender,  or  as  a  lesson  to  the  public,^  the  better  doc- 
trine is  that  such  damages  are  given  as  a  punishment  to  the  offender, 
for  the  benefit  of  the  public  and  as  a  restraint  to  the  transgressor.'* 
Actions  for  the  recovery  of  such  damages  can  only  be  sustained  where 
there  is  malice,  fraud  or  gross  negligence  engendered  in  the  commis- 
sion of  the  act,  and,  in  order  to  warrant  a  recovery  of  such,  there 
must  enter  into  the  injury  some  element  of  aggravation,  or  some  col- 
oring of  insult  or  malice  that  will  take  the  case  out  of  the  ordinary 
rule  of  compensation ;  if  there  is  a  want  of  any  of  these  elements, 
the  measure  of  damages  is  the  measure  of  compensation  for  the  loss 
sustained  and  nothing  more.^  The  question  as  to  whether  an  act  was 
willful,  wanton  or  malicious  relates  only  to  damages  and  not  to  the 
right  of  recovery ;  and  if  the  act  complained  of  can  be  so  classified, 
the  jury  is  authorized  by  law  to  award  such  damages.^  It  must  be 
understood  that  this  rule  applies  only  when  the  action  is  brought  in 
tort,  for  only  actual  damages  can  be  recovered  for  a  breach  of  a  con- 
tract, although  the  defendant  willfully  disregarded  compliance  with 
-neli  contract.'     There  is  one  exception,  however,  to  this  latter  rule ; 


Zimmerman  v.  Bonzar,  16  Atl.  (Pa.) 
71;  Chicago,  etc.,  R.  Co.  v.  Scurr,  59 
Miss.  456,  42  Am.  Rep.  373;  So.  E. 
Co.  V.  Kendrick,  40  Miss.  374,  90  Am. 
Dec.  332. 

MVright  V.  Donnell,  34  Tex.  291. 
See,  also.  So.  R.  Co.  v.  Barr,  55  S.  W. 
900,  12  Ky.  L.  Rep.  1615. 

*  Burns  V.  Campbell,  71  Ala.  271: 
St.  Louis  Consol.  Coal  Co.  v.  Haenni, 
146  111.  614,  35  N.  E.  162;  Ward  v. 
Ward,  41  Iowa  686;  Kansas  City,  etc., 
R.  Co.  V.  Kier,  41  Kan.  GOl,  21  Pacific 
770,  13  Am.  St.  Rep.  311;  Edwards  v. 
Ricks,  30  La.  Ann.  926;  New  Orleans 
40  Miss.  395;  Millard  v.  Brown. 
35  N.  Y.  297;  Rippey  v.  Mil- 
ler, 33  N.  C.  247;  Cole  v.  Tucker,  6 
Tex.  266;  Borland  v.  Barnett,  76  Va. 
128,  44  Am.  Rep.  152;  Mayer  v. 
Frobe,   40    W.    Va.    246,   22    S.   E.    58; 

T.  &  T.— 37 


Press  Pub.  Co.  v.  Munroe.  73  Fed.  196, 
19   (C.  C.  A.)   429,  51  L.  R.  A.  353. 

'Kelly  V.  McDonald,  39  Ark.  387; 
Selden  v.  Cashman,  20  Cal.  56,  81  Am. 
Dec.  93;  Biloxi  City  R.  Co.  v.  Maln- 
ney,  74  Miss.  738,  21  So.  561;  Chica- 
go, etc.,  R.  Co.  V.  Scurr,  59  Miss. 
456,  42  Am.  Rep.  373;  Chicago,  etc., 
R.  Co.  V.  Jackson,  55  111.  492,  8  Am. 
Rep.  661. 

*Kirton  v.  Xortli  Chicago  St.  R.  Co., 
01  111.  App.  554. 

MVest.  U.  Tel.  Co.  v.  Way,  83  Ala. 
542,  4  So.  844;  Haber,  etc..  Hat  Co. 
V.  Southern  Bell  Tel.  Co.,  118  Ga.  874, 
45  S.  E.  696;  Stuart  v.  West.  Tel.  Co., 
66  Tex.  580,  59  Am.  Rep.  623;  West. 
U.  Tel.  Co.  V.  Brown,  58  Tex.  170,  44 
Am.  Rep.  610:  McAllen  v.  West.  U. 
Tel.  Co.,  70  Tex.  243,  7  S.  W.  715; 
Davis  V.  West.  U.  Tel.  Co.,  46  W.  Va. 
48,  32  S.  E.   1026. 


578  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§    600 

that  is,  where  the  action  is  brought  for  the  breach  of  promise  of  mar- 
riage.^ 

§  601.     Same  as  applied  to  corporations. 

At  one  time,  on  account  of  tlie  inability  of  corporations  to  enter- 
tain an  evil  intent,  it  was  held  that  punitive  or  exemplaiy  damages 
could  not  be  imposed  upon  them,.  In  fact  they  were  not  held  liable 
for  a  tort.  But  "the  law  of  remedies  against  corporations  originated 
when  those  artificial  bodies  were  few,  and  those  few  were,  in  the 
main,  such  as  were  created  for  municipal  purposes.  As  corporations 
multiplied,  created  chiefly  for  purposes  of  trade,  the  obstacle  in 
the  way  of  the  attainment  of  justice,  which  arose  out  of  principles 
applicable  only  to  municipal  corporations,  have  gradually  been  re- 
moved" and  swept  away.^  A  corporation  is  now  held  just  as  liable  for 
an  act,  when  committed  either  with  or  without  an  evil  intent,  so  far 
as  it  may  have  been  done  while  acting  within  the  scope  of  its  author- 
ity, as  if  the  act  had  been  committed  by  an  individual.  ^"^  So,  they  may 
be  liable  for  all  their  torts,  and  this  liability  may  be  enforced  in  the 
same  manner  and  way  as  if  the  wrong  complained  of  had  been  com- 
mitted by  a  natural  person.  ^^  It  has  sometimes  been  questionable 
whether  damages  for  punishment  could  be  given  in  civil  cases. -^^  In 
the  state  of  Washington  it  has  l^een  adjudged  that  the  principle  for 
allowing  such  damages  was  unfair  and  unsound,  and  they  are  not, 
therefore,  allowed  in  that  state,  although  the  corporation  may  have 

« Kurtz  V.     Frank,  76     Ind.   594,    40  C.   475,      14     S.      E.       947,      28     Am. 

Am.   Rep.   275.  8t.     Rep.     855;     Samuels       v.       Ricli- 

•Dock   V.   Elizabethtown   Steam   Mfg.  mond,   etc.,   35   S.    C.     493,     14    S.    E. 

Co.,  34  N.  J.  L.  312;   New  York,  etc.,  943,  28  Am.  St.  Rep.  883. 
R.  Co.  V.  Schuyler,  34  N.  Y.  30.     See,  >' Cooley  on  Tort.s   120;      Peebles     v. 

also  the  monographic  note  to     Orr     v.  Patapsco    Guano  Co.,    77    N.     C.    233; 

Bank  of  the   United   States,      13      Am.  Hayos  v.  Houston  R.  Co.,  46  Tex.  272: 

Dec.  596;  Hussey  v.  Norfolk  So.  R.  Co.,  Lee  v.  Village  of  Sandy  Hill,  40  N.  Y. 

98   N.   C.   34,   3   S.   E.   923,   2   Am.    St.  442 ;  Orr  v.  Bank  of  the  United  States. 

Rep.  312  and  note.  1  Ohio  36,   13  Am.  Dec.  588  and  note; 

^'Atlantic,  etc.,  R.   Co.  v.   Dunn,     10  Hussey   v.    Norfolk    So.   R.    Co.,    98   N. 

Ohio  St.   162,  2  Am.  Rep.  382;    Inter-  C.   34,   3   S.   E.   923,   2   Am.     St.    Rep. 

national,  etc.,  R.  Co.  v.  Tel.,  etc.,  Co.,  312  and  note. 

69  Tex.  277,  5  Am.  St.  Rep.  45;   Spell-  "Fay   v.   Parker,   53    N.   H.    342,    16 

man  v.   Richman,  etc.,  R.  Co.,     .35     S.  Am.  Rep.  270. 


§    602]  MEASURE   OF   DAMAGES.  579 

been  guilty  of  gross  negligence. ^^  It  has  been  held  that  damages  b;y 
way  of  punishment  merely  cannot  be  recovered  in  any  case.^^  In 
Colorado,  punitive  damages  cannot  be  recovered  against  a  coqjora- 
tii»u  in  a  civil  ;iction,  although  the  wrong  complained  of  was  willful- 
ly committed.'"  The  great  weight  of  authority  is,  however,  that  such 
damages  may  be  recovered  against  a  corporation  in  civil  actions,  and 
the  remedy  is  just  as  enforcible  against  them  as  if  the  same  act  was 
that  of  a  natural  iierson.^'"'  It  is  further  held  that  the  right  to  re- 
cover such  damages  is  not  confined  to  one  kind  of  actions,  but  that 
they  may  be  recovered  in  case,  as  well  as  in  trespass.  ^^ 

§  602.     Done  by  agents  and  employees — malice. 

Corporations  are  liable  in  exemplary  or  punitive  damages  for  such 
acts  done  by  their  agents  or  employees  while  acting  within  the  scope 
of  their  employment,  as  if  the  same  act  was  done  by  an  individual 
acting  for  himself;'^  and  when  such  damages  are  allowed,  they 
should  be  proportioned  to  the  actual  damages  sustained. ^^  As  said, 
there  must  be  some  element  of  malice  in  order  to  recover  these  dam- 
ages, but  it  is  not  necessaiy  that  there  be  actual  malice.-"  Malice  of 
a  corporation  may  be  showTi  by  proving  the  motives  of  its  directors, 
in  the  same  way  that  the  motives  of  other  associated  or  conspiring 
bodies  are  proved.^ ^  Malice,  in  its  legal  sense,  means  a  wrongful  act, 
done  intentionally,  without  just  cause  or  excuse  :  and  the  malice  of  the 
agent  or  employee  of  a  eor])oration,  in  this  sense,  is  the  malice  of  the 

"  Spokane  Truck     &     Dray     Co.     v.  ''Hopkins  v.  Atlantic,  etc.,  R.,  Co.,  36 

Hoefer,  2  Wash.  45,  11  L.  E.  A.  689n,  X.  H.  9,  72  Am.  Dec.  287. 

26  Am.  St.  Rep.  842,  25  Pac.  1072.  "Magouirk  v.  West.  U.  Tel.  Co.,  79 

"  Stuyvesant    v.    Wilcox,    92     Mich.  Miss.  032,  89  Am.  St.  Rep.  663 ;  Atlan- 

233,   31    Am.    St.   Rep.   580,   55   X.    W.  tic  Great   Western  R.  Co.  v.  Dunn,   19 

6G2.  Ohio  St.   162,  2  Am.  Rep.  382. 

"Groely,  etc.,  R.   Co.  v.  Yeager,      11  ''International,   etc.,   R.   Co.   v.   Tel., 

Colo.  645.  etc..   Co..   (i!)   Tex.  277,  5  S.  W.   517,  5 

"  Spellman  v.  Richmond,  etc.,  R.  Co.,  Am.  St.  Rep.  45. 

35  S.  C.  475,  14  S.  E.  947,  28  Am.  St.  =•  Spellman  v.  Richmond,  etc.,  R.  Co., 

Rep.  858  and  note;   Hoboken  Printing.  35   S.   C.  475,   14   S.  E.    947,    28    Am. 

Co.    V.    Kahn,    59    N.  J.    L.    218,    35  St.  Rep.  858  and  note. 

Atl.    1053,    59   Am.    St.    Rep.    590    and  -» Goodspeed   v.   East  Haddam   Bank, 

note.  22  Conn.  530,  58  Am.  Dec.  439. 


580  TELEGRAPH  AND  TELEPHONE  COMPANIES.  \_^    602 

corporation.^-  The  act  of  an  officer,  agent  or  servant  of  a  corporation, 
when  committed  within  the  scope  of  his  authority  and  employment, 
is  the  act  of  the  corporation,  and  his  negligence  is  its  negligence.^^ 
Corporations  only  act  through  their  agents  and  employees,  and  if  the 
latter  entertained  no  evil  intent,  the  former  could  not  be  liable  for 
a  criminal  act;  for,  without  this,  the  criminal  intent  could  not  be 
entertained  by  the  corporation.  In  a  sense,  the  servant  of  the  corpor- 
ation is  the  life,  or  that  which  creates  life  in  the  latter.  Therefore, 
there  must  be  an  element  of  fraud,  violence,  outrage,  wanton  reck- 
lessness, malice,  evil  intent  or  oppression  forming  part  of  the  wrong- 
ful act  of  the  agent  or  employee ;  and  if  there  is  not  shown  any 
circumstance  of  aggravation,  and  no  evil  motive  is  imputed  in  the 
agent  as  forming  a  part  of  his  actual  or  apparent  duties,  vindictive 
or  punitive  damages  should  not  be  awarded  against  the  corporation.-* 

§  603.     Whether  a  question  of  fact  or  law. 

In  cases  brought  against  corporations — and  of  course  we  include 
in  these,  telegraph  and  telephone  companies — to  recover  exemplary 
or  punitive  damages,  it  is  sometimes  difficult  to  determine  whether 
the  facts  involved  are  such  as  should  be  left  to  the  consideration  of 
the  court,  or  should  be  given  to  the  jury  under  proper  instructions. 
It  is  generally  held,  that  whether  there  is  or  is  not  evidence  in 
any  particular  case  which  would  warrant  exemplary  or  vin- 
dictive damages,  is  a  question  for  the  court  to  determine ;  but  its  suf- 
ficiency to  establish  such  fact,  is  a  matter  for  the  consideration  of 
the  jury.-^  In  such  actions  as  these,  it  is  the  privilege  and  the  duty 
of  the  court  to  determine  whether  there  is  sufficient  evidence  to  sup- 
port the  allegations,  but  it  cannot  go  further  and  announce  to  the 
jury  in  its  instructions,  that  there  is  or  is  not  enough  evidence  adduc- 
ed to  support  the  issue.     In  the  trial  of  the  case,  if  it  is  shown  by  the 

*^Maynard  v.   Fireman's  Fund     Ins.  62  Md.  300,  50  Am.  Rep.  223;  Chicago 

Co.,  34  Cal.  48,  91  Am.  Dec.  872.  v.  Martin,  49  111.  241,  95  Am.  Dec.  590; 

^Hopkins  v.  Atlantic,  etc.,  R.,  36  N.  Toledo,  etc.  R.  Co.  v.  Patterson,  63  111. 

36  H.  9,  72  Am.  Dec.  287.  304;  McFee  v.  Vicksburg,  etc.,  R.  Co., 

»*New  Orleans,  etc.,  R.  Co.  v.   Stat-  42  La.  Ann.  790,  7  So.  720. 
ham,  42  Miss.  607,  97  Am.  Dec.     478;  «>  Samuels  v.  Richmond,  etc.,  R.  Co., 

Mackeon  v.  Citizens'  R,  Co.  40  Mo.  79;  35  S.  C.  493,  28  Am.  St.  Rep.  883,  14 

Philadelphia,   etc.,   R.   Co.   v.   Hoeflich,  S.  E.  943. 


§    604]  MEASURE   OF  DAMAGES.  581 

proper  evidence  that  the  act  complained  of  "was  wantonly  and  will- 
fully inflicted,  or  with  such  a  gross  want  of  care  and  regard  for  the 
rights  of  others  as  to  justify  the  presumption  of  willfulness  or  wan- 
tonness, the  court  will  instnict  the  jury  that  they  are  at  liberty  to 
find  for  the  plaintiff,  in  addition  to  a  compensation  for  the  injury  ac- 
tually sustained,  such  a  sum  as  the  circumstances  justify."  ^^  But, 
if  on  the  other  hand,  there  is  not  sufficient  evidence  to  impute  willful- 
ness, wantonness  or  a  disregard  for  the  rights  of  others,  the  court  on 
proper  request  may  instruct  the  jury  that  the  evidence  is  not  suffic- 
ient to  warrant  them  in  assessing  exemplary  damages. ^^  Some  courts 
have  held,  that  the  jury  should  not  be  instructed  on  the  question  of 
vindictive  damages  in  cases  clearly  not  warranting  its  application,  on 
account  of  the  great  abuses  to  which  this  doctrine  may  be  used.^® 

§  604.     The  purpose  of  such  damages. 

The  purpose  in  awarding  exemplary  damages  is  to  compensate  the 
plaintiff  for  the  wrong  done  him,  and  at  the  same  time  to  punish  the 
corporation  for  committing  such  wrong,  and  to  deter  it  and  others 
from  repeating  such  acts.^^  On  account  of  the  nature  of  corpora- 
tions, the  manner  in  which  they  must  be  punished  for  the  wrongful 
acts,  is  different  from  that  generally  imposed  on  individuals  or  nat- 
ural persons  for  the  same  act.  It  is  not  necessary  to  furnish  a  jury 
with  the  data  from  which  they  can  ascertain  with  reasonable  cer- 
tainty the  extent  of  the  damages  to  be  awarded,  but  the  amount  of 
such  is  at  the  discretion  of  the  jury  within  reasonable  limits.  If 
there  is  sufficient  evidence  adduced  to  warrant  a  verdict  for  exem- 
plary damages,  the  pecuniary  condition  of  the  corporation  may  be 
shown,  since  by  this  means  the  extent  of  the  punishment  to  be  in- 
flicted in  every  particular  case  can  only  be  ascertained.  Exemplary 
damages  inflicted  on  a  corporation  as  a  means  of  punishment  for  its 
wrongful  acts,  may  be  excessively  great  on  account  of  its  small 
wealth,  but  at  the  same  time  the  same  amount  of  damages  would, 

-"•Id.  35    S.    C.    493,    28    Am.    St.    Rep.    883, 

=' Pittsburg,   etc..   R.   Co.,   v.    Slasser,  14  S.  E.   943. 
19  Ohio  St.  157:  Toledo,  etc..  R.  Co.  v.  ™  Cumberland,  etc..  Tel.  Co.  v.  Post- 
Patterson,   G3   111.   304.  on.  94  Tenn.  096. 

-*  Samuels  v.  Richmond,  etc.,  R.  Co., 


5S2  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [<^    604: 

on  another  corporation  which  represents  much  greater  capital,  be  con- 
sidered a  small  punishment.  But  the  fact  must  not  be  lost  sight  of 
thatj  in  all  cases  of  this  kind,  the  jury  is  to  be  governed  wholly  bj 
the  malice  or  wantonness  of  the  corporation  as  sliown  by  its  con- 
duct,^^  and  they  may  take  into  consideration  the  injury  to  the  plain- 
tiff's feelings  and  the  loss  of  his  credit  in  estimating  exemplary  dam- 
ages.^ ^ 

§  605.     Assault  and  battery. 

The  general  rule  of  common  carriers  is  that  they  are  answerable 
for  the  malicious  and  wanton  acts  of  their  servants  to  a  passenger, 
whether  done  in  the  line  of  their  employment  or  service  or  not,  pro- 
vided the  same  is  done  during  the  discharge  of  their  duty  to  the  mas- 
ter which  relates  to  the  passenger.  They,  as  common  carriers,  owe 
the  duty  toward  their  passengers  to  protect  them  against  the  insults  of 
their  servants.^-  Telegraph  companies  are  made  common  carriers  by 
statutes  in  many  states,  but  there  is  a  distinction  to  be  drawn  between 
these  two  kinds  of  carriers  with  respect  to  the  present  issue ;  however, 
we  do  not  think  that  the  distinction  is  material  in  the  present  discus- 
sion. One  is  a  common  carrier  of  passengers,  and  is  entrusted  with 
the  person  of  the  individual  to  whom  it  owes  the  duty  of  protection ; 
the  other  is  only  entrusted  with  the  property  of  the  person.  While 
the  carrier  owes  this  duty  to  the  passenger  only  when  he  is  a  passen- 
ger, yet  it  is  not  necessary  for  him  to  be  in  actual  transit  or  on  board 
the  vehicle  furnished  for  his  transportation  in  order  to  constitute  him 
a  passenger.  If  he  has  made  arrangements  for  passage  and  is  within 
the  premises  of  the  company  in  readiness  of  departure,  as  where  he 
is  in  the  depot  or  waiting-room,  he  is  nevertheless  a  passenger  within 
the  meaning  of  the  terms.  We  have  been  unable  to  find  a  case  against 
a  telegraph  company  touching  on  this  particular  point,  but  we  can 
easily  imagine  instances  where  such  cases  could  occur.    Eor  instance, 

•"State  V.  Patterson,  4.5  Vt.  308,     12  Me.  202,  2     Am.     Rci^.     .30;     Hoboken 

Am.  Rep.  200.  Print.,  etc.,  Co.   v.   Kahn,   59   N.   J.  L. 

'■Note  to  Burnham  v.  Cornwell,     63  218,   59  Am.   St.  Rep.   592;   Richmond, 

Am.  Dee.  545;  Tobin  v.  Shaw,  45  Me.  etc.,  R.  Co.  v.  .Jefferson,  89  Ga.  554,  32 

331,  71  Am.  Dec.   547.  Am.  St.  Rop.  87  and  note. 

"  Goddard  v.  Grand  Trunk  R.  Co.,  57 


<§    606]  MEASURE    OF    DAMAGES.  583 

if  a  person  is  within  the  office  or  exchange  of  a  telegraph  or  telephone 
company,  transacting  or  for  the  purpose  of  transacting  business  with 
respect  to  the  transmission  of  news,  or  engaging  its  employment,  and 
while  there  the  agent  or  servant  of  the  company  commits  an  assault 
and  battery  iipoTi  suoli  person,  which  is  done  while  acting  within  the 
apparent  discharge  of  his  duty  to  the  company  relative  to  the  services 
of  employment,  the  company  would  be  liable  for  such  act.  We  shall 
presume  to  go  further  in  the  discussion  of  this  subject  by  saying  that 
wc  do  not  think  it  necessary  that  such  person  should  be  within  the 
])remises  of  the  company ;  but  if  he  is  accompanying  one  of  the  ser- 
vants of  the  company  to  the  office  or  exchange  for  the  purpose  of  an- 
swering a  call,  and  is  in  the  apparent  protection  of  the  servant  a? 
such,  an  assault  by  such  servant,  will  be  considered  that  of  the  com- 
pany. For  instance,  suppose  that  the  servants  of  the  telephone  com- 
pany conspire  to  commit  an  assault  on  a  strange  lady  in  a  small 
town,  and  in  order  to  accomplish  their  purpose  they  put  in  a  false 
call  at  night  for  her.  To  answ^er  said  call,  it  becomes  necessary  for 
the  latter  to  go  to  the  exchange,  and,  according  to  the  plans  of  the 
conspiracy,  one  of  the  servants  offers  to  and  does  accompany  her  to 
the  exchange.  On  reaching  the  exchange  the  supposed  person  calling 
her  cannot  be  found  and  she  then  returns,  in  the  company  of  the  ser- 
vant, to  her  stopping  place.  If  while  enroute  an  assault  is  committed 
on  her  by  said  sen^ant,  the  company  would  undoubtedly  be  liable. 

§  606.     Libel. 

While  all  corporations  may  be  civilly  liable  for  a  libel,^^  yet  the 
opportunities  more  often  present  themselves  for  such  acts  to  be  com- 
mitted by  telegraph  companies  than  by  most  any  other  kind  of  cor- 
poration, unless  it  be  a  publishing  company.  Their  express  purpose 
is  to  transmit  news,  and  most  often  such  as  is  libelous  is  made  public 
by  means  of  these  companies.  As  is  known,  the  publishers  of  a  libel 
are  as  guilty  as  the  author  himself,  and  whenever  one  or  more  per- 

=»Belo  V.   Fuller,  84  Tex.  450.   19   S.  :\IcDorinott.   44   N.   J.   L.   430,   43   Am. 

W.  61G,   31   Am.   St.  Rep.  75;    Fogg  v.  Rep.   392;    Johnson  v.   St.   Louis     Dis- 

Boston.   etc.,  R.   Corp.,   148  Mass.   513.  patch  Co..  05  :Mo.  539,  27     Am.     Rep. 

20  N.  E.  109,  4  L.  R.  A.  382n,  12  Am.  293. 
St.  Rep.  583 ;  Evening  Journal  Assn.  v. 


584  TELEGEAPH  AjS'D  TELEPHONE   COMPANIES.  [<§,    606 

sons,  other  than  he  on  whom  the  calumny  is  cast,  sees  the  libelous 
words,  this  is  sufficient  publication.  It  seems  that  it  is  not  necessary 
that  some  third  person,  disconnected  from  the  company,  should  have 
seen  the  libelous  words  in  order  to  make  a  publication,  but  if  the  ser- 
vants of  the  company  see  them,  this  is  sufficient.  So,  in  an  action 
against  a  telegraph  company  for  libel,  the  jury  would  be  authorized 
to  give  such  exemplary  damages  as  the  circumstances  required,  if  the 
evidence  shows  that  the  publication  was  the  result  of  that  reckless  in- 
difference to  the  rights  of  others  which  is  equivalent  to  the  inten- 
tional violation  of  them.^*  When  malice  on  the  part  of  the  company  is 
established  as  a  fact  in  such  cases,  either  actually  or  by  presumption 
or  inference  of  facts  from  the  libelous  character  of  the  publication, 
exemplary  damages  may  be  recovered. ^^  If,  however,  there  is  no  evi- 
dence that  the  company  published  the  libel  carelessly,  maliciously  or 
wantonly,  exemplary  or  punitive  damages  cannot  be  recovered.^" 
The  damages  sustained  must  be  more  than  merely  nominal,  and  if 
the  jury  should  find  that  this  is  the  only  loss  suffered,  they  would  not 
be  justified  in  awarding  punitive  damages ;  ^^  but,  if  it  is  shown  that 
the  publication  was  maliciously  made  to  bring  reproach  upon  the 
plaintiff's  business  or  domestic  relations,  damages  other  than  nominal 
will  be  presumed  and  exemplary  damages  may  be  recovered.^ ^  It  is 
not  necessary  that  the  publication  be  made  by  means  of  transmission 
of  news,  but  if  it  is  done  carelessly,  recklessly  or  maliciously  in  any 
other  way  by  its  servants  while  acting  within  the  scope  of  their  au- 
thority, it  will  be  liable.  For  instance,  suppose  a  telephone  company 
negligently  prints  the  name  of  one  of  its  subscribers  in  the  directory, 

"■  Morning  Journal    Assn.   v.     Ruth-  16  Pac.  804 ;  West.  U.  Tel.  Co.  v.  Cross, 

erford,  51  Fed.  513,  IG  L.  R.  A.  803;  74  S.  W.  1098.' 

Cooper  V.  Sun  Print.,  etc.,  Assn.,  57  When  plaintiff  makes  out  a  case  en- 
Fed.  566.  titling   him   to   recover   the   price   paid 

^  Childers  v.   San  Jose,     etc.,     Pub.  for  transmission,  that  is  a  showing  of 

Co.,  105  Cal.  284,  38  Pac.  903,  45  Am.  actual  damages  which  will  warrant  al- 

St.  Rep.  40.  lowance  of  exemplary  damages  if  a  wil- 

'•'■^  Philadelphia,  etc.,  R.  Co.  v.  Quig-  full     injury     or     gross     negligence     is 

ley,  21  How.  202;  Missouri  Pac.  R.  Co.  shown:      West.  U.  Tel.   Co.  v.  Lawson, 

V,  Richmond,  73  Tex.  568,     11     S.  W.  66  Kan.  660,  72  Pac.  283. 

555,  15  Am.  St.  Rep.  794,  4  L.  R.  A.  »» West.    U.   Tel,   Co.   v.     Rogers,   68 

280n.  Miss.  748,  24  Am.  St.  Rep.  300,   13  L. ' 

"Schippel  V.  Norton,  38  Kan.     567,  R.  A.  859n,  9  So.  823. 


<^    607]  MEASUEE    OF    DAMAGES.  585 

SO  as  to  indicate  that  he  is  a  different  person  from  that  which  he 
really  is,  and  these  are  afterwards  published  or  distributed — against 
the  said  person's  consent — to  the  other  subscribers  by  the  servants  in 
a  malicious  manner  and  in  utter  disregard  of  consequences,  the  com- 
pany will  be  liable. 

§  607.     Malicious  prosecution. 

A  telegi-aph  company  may  be  held  liable  for  a  malicious  prosecu- 
tion conducted  by  its  agents  and  officers,  just  as  if  it  were  a  natural 
person,  and,  in  such  cases,  where  it  is  shown  that  the  case  was  malic- 
iously prosecuted,  exemplary  or  punitive  damages  may  be  recovered. 
"The  old  doctrine  was,"  said  Judge  Campbell,  "that  a  corporation 
was  not  so  liable,  because  malice  is  the  gist  of  the  action,  and  it  was 
said  that  malice  could  not  be  imputed  to  a  mere  legal  entity,  which 
having  no  mind  could  have  no  motive  and  therefore  no  malice,  and 
this  narrow  view  still  prevails  to  some  extent.  But  the  steady  process 
of  judicial  evolution  has  led  to  the  establishment  in  some  of  the 
courts  of  the  just  doctrine  of  the  civil  responsibility  of  a  corporation 
for  the  acts  of  the  sentient  persons  who  represent  it,  and  through 
whom  it  acts,  and  of  the  liability  of  a  corporation  for  the  acts  of  it^ 
agents,  under  the  conditions  that  attach  to  individuals."  ^^ 

§  608.     Trespass — accompanied  with  malice. 

It  is  necessary  that  bad  motives  be  involved  in  order  that  exem- 
plary damages  may  always  be  recovered  in  actions  of  tort  against  a 
corporation.  They  arc  not  recoverable  for  every  trespass  made  by  a 
corporation  on  other's  lands,  but  only  where  it  is  committed  through 
malice,  or  is  accompanied  by  threats,  oppression  or  rudeness  to  the 
owner  or  occupant,  can  they  be  recovered.  Punitive  damages  are 
not  allowed  where  the  trespass  has  been  made  in  good  faith  or  by 
mistake  as  to  authority,  otherwise  they  will  be.^"  Thus,  in  one  case 
the  employees  of  a  telephone  company  went  to  the  owner  of  a 
tree  which  was  standing  in  front  of  his  house  to  get  permission  to 

^Williams  v.  Printers'  Ins.    Co.,    57      ber  Co.,   115  N.   Car.   648,  20     S.     E. 
Miss.  759,  34  Am.  Rep.  494  and  note.      718;  Silver  Creek,  etc.,  Co.  v.  Mangum. 
*"  Waters  v.  Greenleaf- Johnson  Lum-      64  Miss.    682. 


586  TELEGRAPH   AXD   TELEPHONE   COMPANIES.  ["§    608 

trim  it,  so  as  to  stretcli  a  line  of  wire  along  the  street.  On  refusal  of 
the  o"\^Tier  to  gTant  such  permission,  if  they  wait  until  he  leaves  home 
and  then  trim  the  tree,  the  company  will  be  liable,  and  in  addition  to 
the  actual  damages  sustained,  to  punitive  damages;  ^^  or,  if  they  w^ait 
until  night  to  take  advantage  of  such  right,  the  company  will  be  lia- 
ble to  exemplary  or  punitive  damages.  Should  the  company's  ser- 
vants trespass  upon  the  land  of  another,  against  his  consent  in  the 
construction  of  a  line  of  wires,  and  in  doing  so  destroy  his  crops  ad- 
joining the  right  of  way,  the  company  will  be  liable  in  punitive  dam- 
ages.^^  In  other  words,  the  company  will  be  liable  for  the  unlawful 
trespass  of  its  servants  committed  while  in  the  discharge  of  their 
duty  toward  the  company,  just  the  same  as  the  servants  would  be  if 
they  were  acting  for  themselves. 

§  609.     Negligence — question  for  jury. 

Exemplary  or  punitive  damages  cannot  be  recovered  from  a  tele- 
graph company  for  injuries  to  the  person  caused  by  the  mere  negli- 
gence of  its  servants  or  employees;  so,  a  jury  would  be  unwarranted 
in  awarding  such  damages,  where  it  is  shown  that  the  injury  is  the 
result  of  nothing  more  than  negligence  on  the  part  of  the  servants.^^ 
Thus,  a  mere  refusal  by  a  telephone  company  to  furnish  a  long  dis- 
tance connection,  will  not  justify  the  allowance  of  exemplary  dam- 
ages. Such  damages  are  only  allowed  for  personal  injuries,  when 
the  wrong  is  wantonly  and  willfully  inflicted,  or  with  such  gross  want 
of  care  and  regard  for  the  rights  of  others  as  to  justify  the  presump- 
tion of  wantonness  or  willfulness.'*^  In  other  words,  the  injury  must 
be  the  direct  result  of  the  act  of  the  agents,  where  they  have  been 
guilty,  not  only  for  want  of  ordinary  care,  but  of  that  entire  want  of 
care  which  would  raise  the  presumption  of   a   conscious    indifference 

"  See  §  125.  v.  West.  U.  Tel.  Co.,  70  Tex.  243 ;  Da- 

"Id.  vis  V.    West.   U.   Tel.   Co.,   46   W.   Va. 

«West.  U.  Tel.  Co.  v.  Way,  83  Ala.  48,  32  S.   F.   1026. 
542,  4  S.  E.  844;  Haber,  etc.,  Hat  Co.  "Magouirk  v.  West.  U.  Tel.  Co.,  79 

V.  Southern  Bell  Tel.  etc.,  Co.,  118  Ga.  Miss.  632,  31  So.  206,  89  Am.  St.  Rep. 

874,  45  S.  E.  696;   Stuart  v.  West.  U.  663;  Lewis  v.  West.  U.  Tel.  Co.,  57  S. 

Tel.    Co.,    66    Tex.    580,    59    Am.    Rep.  C.  325,  35  S.  E.  556.     See  also  Butler 

023;    West.   U.  Tel.   Co.  v.   Brown,   58  v.    West.    U.    Tel.    Co.,    65    S.    C.    510, 

Tex.    170,   44   Am.   Rep.   610;    McAllen  44  S.  E.  91. 


<^    GIO]  MEASURE   OF  DAMAOKS.  587 

to  consequences,  or  wliicli  shows  wantonness  or  recklessness,  or  a 
grossly  careless  disregard  of  the  safety  and  welfare  of  the  public,  or 
that  reckless  indifference  to  the  rights  of  others  which  is  equivalent 
to  an  intentional  violation  of  theni.-*^  Thus,  it  has  been  held,  that 
punitive  damages  can  be  recovered  where  a  messenger  boy  intention- 
ally fails  to  deliver  a  message.*"  Whether  there  is  or  is  not  sufficient 
evidence  adduced  to  disclose  wanton  and  gross  negligence,  it  is  not 
only  a  privilege  but  the  duty  of  the  court,  by  proper  request,  to  in- 
struct the  jury  that  they  may  "^^  or  may  not  award  punitive  damages 
as  the  case  may  be."*'^  It  is  a  question  for  the  jury  on  being  properly 
instructed,  to  determine  whether,  from  the  evidence,  the  degree  of 
care  exercised  amounts  to  the  degree  of  gross  negligence  to  constitute 
the  act  as  willfully  or  wantonly  committed.'*'' 

§  610.     Same  continued — against  telegraph  companies. 

All  that  has  been  said  in  this  chapter  with  respect  to  exemplary 
damages,  applies  with  equal  force  to  telegraph  companies.  Thus,  ex- 
emplary, punitive  or  vindictive  damages  may  be  recovered  against  a 
telegraph  company  for  a  failure  to  transmit  and  deliver  a  message, 
where  there  is  such  gross  negligence  on  the  part  of  the  agents  or  em- 
ployees of  the  company  as  to  indicate  wantonness  or  a  malicious  pur- 
pose in  failing  to  transmit  and  deliver  it.^'^  So  also,  if  the  agent  of  the 
company  who  receives  a  reply  message  for  transmission,  knows  the 

"West.  U.  Tel.  Co.  v.  Seed,  115  Ala.  the  gross  negligence  is  the  employment 

670,  22  So.  474;   West.  U.  Tel.  Co.  v.  of  an  incompetent  agent  and  it  appears 

Cunningham,  99  Ala.  314,  14  So.  579;  that   the   agent   referred   to   had   never 

West  V.  West.  U.  Tel.  Co.,  39  Kan.  93.  been  negligent  before,  exemplary  dama- 

7   Am.   St.     Rep.   530,      17   Pac.      807:  ges  are  not  recoverable:   West.  U.  Tel. 

Southern  Kan.  R.  Co.  v.  Rice,  38  Kan.  Co.  v.  Karr,  5  Tex.  Civ.  App.  60. 

398,  16  Pac.  817,  5  Am.  St.  Rep.  766:  «  Butler  v.  West.  U.  Tel.  Co.,  65  S. 

West.  U.  Tel.  Co.  v.  Lawson,  66  Kan.  C.  510,  44  S.  E.  91. 

660,    72   Pac.   283;    West.   U.   Tel.    Co.  *"  Kansas  Pac.  R.  Co.  v.  Kessler,   18 

V.    Watson,   33    (]Miss.)    76;    Young    v.  Kan.  523. 

West.   U.   Tel.   Co.,   65    S.   C.    93,     43  *^  Chicago  R.   Co.   v.   Curr,   59   Miss. 

S.  E.  448;   West.  U.  Tel.  Co.  v.  Frith.  450,   42   Am.   Rep.    373. 

105   Tenn.    167,   58    S.    W.    118;    West.  "  Southern,  etc.,  R.  Co.  v.  McLendon, 

D.  Tel.  Co.  V.  Morris,  77  Tex.  173,  13  63  Ala.  266,  14     So.  579;   Bannon     v. 

S.  W.  888;  Gulf,  etc.,  R.  Co.  v.  Le\x.  Baltimore,  etc.,  R.  Co.,  24  Md.  108. 

59  Tex.  542,  46  Am.  Rep.  69.     Where  "  See  note  45. 


588  TELEGKAPH  AND  TELEPHONE  COMPANIES.  [<^    610 

iTrgent  necessity  for  promptness  in  forwarding  it,  but  delays  sending 
it  off  until  the  next  morning,  it  is  a  question  for  the  jury  to  decide 
whether  this  was  not  such  gross  negligence  as  evinced  an  utter  disre- 
gard of  plaintiff's  feelings  and  rights,  and  if  they  so  determine,  puni- 
tive damages  may  be  awarded."^  If  the  employees  of  the  company 
negligently  allow  the  wires  to  fall  on  the  wires  of  an  electric  light 
company,  and  to  remain  there  hanging  down,  the  company  will  be 
liable  in  exemplary  damages  to  one  injured  by  accidentally  coming 
in  contact  with  the  wires,  if  the  employees  acted  in  a  spirit  of  mis- 
chief or  criminal  indifference,  and  it  was  known  to  the  company's 
managers ;  or,  if  the  managers  did  not  exercise  proper  care  in  select- 
ing the  employees,  or  if  they  knew,  or  had  means  of  knowing,  that 
they  were  not  skillful,  prudent  or  careful,  it  would  still  be  liable.^^ 
A  telegraph  company  cannot,  however,  be  held  answerable  in  exem- 
plary damages  for  an  injury  occasioned  by  its  servants  or  employees, 
in  the  absence  of  willful  or  malicious  conduct  or  intentional  wrong.^^ 
So,  a  telegraph  company  is  not  answerable  in  exemplary  damages  on 
account  of  the  mere  failure  of  its  agents  to  find  the  addressee  of  a 
message,  where  it  is  not  shown  that  the  company  had  knowledge  of 
the  incompetency  of  its  agents  when  they  were  employed,  or  that  they 
were  retained  after  it  was  known.^^ 

§  611.     Same  continued — actual  damages. 

In  cases  brought  against  telegraph  companies  to  recover  punitive 
damages  for  injuries  resulting  from  the  willful  acts  of  their  servants 
or  employees,  it  is  necessary  to  show  that  actual  damages  have  been 
sustained.  While  this  is  the  rule,  yet  the  amount  of  damages  sus- 
tained may  be  very  small.  Thus,  it  was  held  that  when  the  plain- 
tiff makes  out  a  case  entitling  him  to  recover  the  price  paid  for  trans- 
mission, this  is  a  sufficient  showing  of  actual  damages  to  warrant  the 

•^West.  U.  Tel.  Co.  v.  Cunningham,  "'West.  U.  Tel.  Co.  v.  Eyser,  91  U. 

99  Ala.     314,   14   So.   579;      Butler  v.  S.    495,    note    reversing    2    Colo.    141; 

West.    U.   Tel.    Co.,   62    So.    C.   22,    40  Erie  Tel.  Co.  v,  Kennedy,  80  Tex.  71. 

S.  E.  162,  S9  Am.  St.  Rep.  893,  55  L.  "West.  U.  Tel.   Co.  v.  Karr,  5  Tex. 

R.   A.   414.  Civ.   App.   GO,  24   S.   W.   302. 

'^^Henning   v.   West.   U.   Tel.   Co.,   41 
Fed.    864. 


<5>    612]  MEASURE  OF  DAMAGES.  589 

allowance  of  cxemplaiy  damages,  if  a  Avillful  injury  or  gross  negli- 
gence is  shown.^^  If,  however,  mental  suffering  has  been  the  result 
of  injury  to  the  character  or  reputation  of  one  of  the  parties  to  a 
forged  telegram  sent  by  the  company's  agent,  while  acting  within  the 
scope  of  his  authority  or  employment,  it  is  not  necessary  that  actual 
damages  be  sustained.^" 

§  612.     Excessive  damages. 

We  shall  not  comment  to  any  great  extent  upon  the  subject  of  ex- 
cessive damages,  since  there  is  no  difference  in  the  application  of  the 
rules  of  law  on  this  subject  as  regards  actions  brought  against  tele- 
graph and  telephone  companies  and  those  brought  for  the  same  causes 
against  other  corporations  and  individuals ;  ^"  and  to  treat  the  sub- 
ject as  it  should  be,  would  necessarily  consume  much  valuable  time 
and  encumber  the  pages  of  this  work  with  matter  foreign  to  the  ob- 
ject for  which  it  was  prepared.  Damages,  as  has  been  said  elsewhere, 
are  regarded  as  a  compensation  for  infringement  of  the  rights  of 
others;  and  when  not  connected  with  matters  of  aggravation  or  mal- 
ice, they  are  considered  as  matter  within  the  discretion  of  the  jury, 
under  proper  instructions  by  the  court,?^  and  an  appellate  court  will 
seldom  interfere  with  the  verdict  when  rendered.  The  general  rule 
on  this  point  as  expressed  by  Judge  Story  is,  ''that  a  verdict  will  not 
be  set  aside  in  a  case  of  tort  for  excessive  damages,  unless  the  court 
can  clearly  see  that  the  jury  has  committed  some  very  gross  and 
palpable  error,  or  has  acted  under  some  improper  bias,  influence  or 
prejudice,  or  has  totally  mistaken  the  rules  of  law,  by  which  the 
damages  are  to  be  regulated."  ^^     In  such  cases,  the  court  should  con- 

"West.   U.   Tol.   Co.    V.   Lawson,     66  Rop.   43,   54   L.   R.    A.    752;    Wynne   v. 

Kan.  660,  72  Pac.  283.  Atlantic   Ave.   R.   Co.,    156   N.   Y.   702, 

"Magouirk  v.  West.  U.  Tel.  Co.,  79  51    N.   E.    1094;   New  Orleans,  etc.,   R. 

Miss.  632,  31  So.  206,  89  Am.  St.  Rep.  Co.  v.  Schnieider,  60  Fed.  210,  8  C.  C. 

663.  A.  571;  Missouri  Pac.  R.  Co.  .v.  Texas, 

"West.  U.  Tel.  Co.  v.  McCall,  9  Kan.  etc.,  R.  Co.,  33  Fed.  803;  Montreal  Gas 

App.  886,  58  Pac.     797;    Peterson     v.  Co.  v.  St.  Lawrence,  26  Can.  Supreme 

West.    U.    Tel.   Co.,   75   Minn.    368,   74  Ct.   176. 

Am.  St.  Rep.  502,  43  L.  R.  A.  581.  '^'Whipple  v.   Cumberland  Mfg.    Co.. 

"Birmingham   R.  etc.,  Co.  v.   Baird,  29  Fed.  Cas.  No.  17516,  2  Story  661. 
1.30   Ala.   234,   30   So.   556,   89  Am.   St. 


590  TELEGKAPH  AXD  TELEl'llOXE   COMPANIES.  [<§>    G12 

sider  all  tlio  circumstances  surrouiiJiiig-  the  case  and  consider  there- 
from whether  the  verdict  is  fair  and  reasonable ;  and  it  "vvill  be  pre- 
sumed that  thev  are  fair  and  reasonal)le,  unless  they  are  clearly  so 
excessive  or  outrageous  with  reference  to  those  circumstances  as  to 
demonstrate  that  the  jury  have  acted  against  the  rules  of  law  or  has 
allowed  their  passions  and  prejudices  to  overcome  their  better  judg- 
ment.''''  As  said,  the  court,  in  determining  the  question  as  to 
whether  or  not  damages  which  have  been  awarded  are  excessive,  must 
be  gTiided  by  the  circumstances  of  each  particular  case ;  but  if  it 
clearly  appears  that  the  jury  has  mistaken  the  law,  or  has  allowed 
their  feelings  or  bias  in  the  case  to  misled  them,  the  court  should  not 
hesitate  to  set  the  verdict  aside  ^^ 

§  613.     When  rule  invoked. 

It  is  seldom  that  this  rule  is  invoked,  except  in  cases  where  dam- 
ages for  mental  suffering  is  claimed.  In  one  case,  falling:  under  this 
rule,  it  w.as  held  that  $600  was  not  excessive  where  the  delayed  mes- 
sage was  one  requesting  the  presence  of  a  physician,  and  in  conse- 
quence of  the  delay,  the  sufferings  of  plaintiff's  wife  in  confinement 
were  prolonged  about  two  hours.""  In  a  case  similar  to  this,  it  was 
held  that  $950  was  not  excessive.*''^  On  account  of  the  non-delivery 
of  a  message  requesting  a  ticket,  plaintiff  complained  that  he  Avas 
compelled  to  walk  and  steal  rides  from  Grand  Junction,  Colorado,  to 
Lovelock,  ISTevada.  An  allowance  of  $1,250  was  held  excessive.  In 
another  case,  it  appeared  that  the  plaintiff  was  a  commercial  news 
agent  in  Cincinnati,  engaged  in  furnishing  to  customers  financial 
news  and  reports  for  New  York  City  as  to  the  state  of  the  market. 
He  alleged  a  willful  and  malicious  breach  of  contract  on  the  part  of 
the  telegraph  company.  The  verdict  was  for  $3,000,  though  the  ac- 
tual damages  appeared  to  be  not  more  than  five  hundred.     The  court 

•■■o  Ottawa  V.  Sweely,  65  111.  434;  Har-  1.3   Ky.   L.   Rep.   626,   36  Am.   St.   Rep. 

vis  V.  Louisville,  etc.,  R.   Co.,   35  Fed.  595,   14  L.  R.  A.  677. 

116:    Walker  v.  Erie  R.  Co.,  63  Barb.  "^Vest.  U.  Tel.  Co.  v.  Cooper,  20   S. . 

260.  W.   (Tex.)  47,  affirming  71  Tex.  507,  10 

"  Kansas   Pac.   R.   Co.  v.   Peavey,   34  Am.  St.  Rep.  772,  1  L.  R.  A.  728. 

K:ui.  872.  8  Pac.  780;  Standard  Oil  Co.  «nVest.  U.  Tel.  Co.  v.  Church,  90  X. 

V.  Tiernev,  92  Ky.  367,  17  S.  W.  1025.  \V.  878,  57  L.  R.  A.   905. 


<^    G14]  aiEASL'KE   Oi-'  DAMAGES.  591 

ordered  tlie  amount  to  Ix-  reduced  by  a  remittitur  of  $2,000,  lioldiug, 
however,  that  the  phiiiititT  liad  a  right  to  more  than  the  actual  dama- 
ges sustained/'* 

§  614.     Same  continued — mental  suffering — excessive. 

As  said  ill  ilic  preceding  section,  the  question  of  excessive  damages 
is  seldom  questioned,  except  in  cases  in  which  damages  for  mental 
suffering  are  claimed.  In  these  cases,  the  damages  awarded  are  some- 
times so  flagrantly  gi'eat  that  courts  can  easily  see  that  the  jury  was 
biased,  prejudiced  or  failed  to  understand  the  law  applicable  to  the 
case.  Thus,  where  the  company  failed  to  promptly  deliver  a  message 
to  a  mother  asking  her  to  come  to  her  sick  son,  and  by  reason  of  the 
delay  she  did  not  see  him  until  after  his  death,  whereas  she  would 
have  been  able  to  have  seen  him  fully  twenty-four  hours  before  death 
if  the  message  had  been  promptly  delivered,  it  was  held  that  a  ver- 
dict of  $5,000  in  favor  of  the  plaintiff  was  so  excessive  as  to  shock  the 
sense  of  justice,  and  to  clearly  indicate  that  the  jury  were  influenced 
by  passion  or  prejudice.''^  In  another  case  the  son,  on  account  of 
non-delivery  of  a  message,  was  prevented  from  reaching  his  father  in 
the  latter's  sickness  until  his  father  was  unconscious.  He  was  with 
him,  however,  for  several  days  before  his  death.  The  father  was  73 
years  old,  and  his  son  50,  and  an  unusual  strong  affection  was  shown 
to  have  existed  between  them.  It  was  held  that  a  verdict  of  $4,750 
was  excessive.^''  Each  of  these  cases  cited  and  approved  another  case 
where  a  verdict  of  $4,500  was  held  excessive,  the  evidence  showing 
that  a  message  sent  to  a  boy's  father  was  delayed,  and  by  reason  of 
the  delay  the  father  was  kept  away  from  the  bedside  of  his  dying 
son.®"  Other  cases  will  be  found  in  notes  where  damages  were  held 
excessive.®^ 

"West.  U.  Tel.   Co.   v.    Rosentretter,  "  Tennessee- West.  U.  Tel.  Co.  v.  Mel- 

80  Tex.  406,   16  S.  W.  25.  Ion,  100  Tenn.  429   ($500.00)  ;  Railroad 

"Stuart  V.      West.   U.  Tel.      Co.,   66  Co.  v.  Griffin,  92  Tenn.  694    (.$900.00). 

Tex.   580.   IS   R.   W.   ,151.   r^<^   Am.  Rep.  Texas.— West.  U.  Tel.   Co.   v.   Evans. 

023.  1    Tex.    Civ.    App.    297.   21    S.    W.    26(i 

«MVost.  I'.  Tel.   Co.  V.  Piner.   1  Tex.  ($5,000.00);   West.  U.  Tel.  Co.  v.  Ber- 

Civ.  App.  301.  21  S.  W.  315.  iline,  2  Tex.  Civ.  App.  517   ($1,999.99)  ; 

•"West.  U.  Tel.  Co.  v.  Houghton.  82  West.  V.  Tel.  Co.  v.  Douchell.  28  Tex. 

Tex.  561.    1.-)   1..   R.   A.    liUn.   17   S.  W.  Civ.   App.   23,   67    S.   W.    159    ($1,250; 

840.  remittitur  of  $750   ordered). 


592  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    615 

§  615.     Same  continued — not  excessive. 

Where  a  message  announced  the  death  of  phiintift's  sister,  and  by 
its  being  delayed  he  was  prevented  from  attending  her  funeral  and 
from  being  able  to  '"give  comfort  and  consolation  to  his  aged  mother 
in  her  hour  of  great  trouble,"  an  award  of  $1,000  was  considered  not 
excessive.^^  It  was  held  in  another  similar  case,  that  $1,168  was  not 
excessive  compensation  for  the  mental  anguish  suffered.'^*'  The  com- 
pany's negligence  prevented  plaintiff  from  being  at  the  bedside  of  his 
dying  brother  and  from  attending  his  funeral,  and  $2,500  as  actual 
damages  for  mental  suffering  were  held  not  to  be  excessive."^  ^  It 
would  be  a  difficult  and  useless  undertaking  to  enumerate  all  the  cases 
where  damages  for  mental  suffering  were  held  not  to  be  excessive. 
While  a  case  having  similar  features  involved  may  be  used  as  a  guide 
in  determining  whether  the  damages  are  excessive,  yet  on  account  of 
the  circumstances  attending  each  case  being  different  in  some  particu- 
lar, a  perfect  and  safe  guide  cannot  be  resorted  to,  but  each  particular 
case  must  be  decided  on  its  own  merits.  Other  cases  are  cited  in  the 
note  below  where  damages  were  held  not  excessive.'^ ^ 

°'West.   U.   Tel.   Co.   v.   Rosentretter,  ($1,500    including    punitive    damages); 

80  Tex.  406,  16  S.  W.  25.  West.  U.  Tel.  Co.  v.  Robinson,  97  Tenn. 

'"West.   U.   Tel.   Co.   v.   Broesche,   72  G38,  37   S.   W.   545;    34  L.  R.   A.   431n 

Tex.   654,   3  Am.   St.  Rep.  843.  ($500). 

"  Stuart  V.  West.  U.  Tel.  Co.,  66  Tex.  Texas.— West.  U.  Tel.  Co.   v.  Evans, 

580,  18  S.  W.  351,  59  Am.  Rep.  623.  5   Tex.    Civ.   App.    55,   23    S.    W.    998; 

^'  Alabama.— West.     U.     Tel.   Co.     v.  West.  U.  Tel.  Co.  v.  Karr,  5  Tex.  Civ. 

Sneed,   115  Ala.  670,  22  So.  474    ($1,-  App.  60,  24  S.  W.  302    ($100)  ;   West. 

500)  ;  West.  U.  Tel.  Co.  v.  Crocker,  135  U.  Tel.  Co.  v.  Zane,  6  Tex.  Civ.  App. 

Ala.  492,  59  L.  R.  A.  398  ($225)  ;  West.  585    ($1,950);    West.     U.Tel.   Co.     v. 

U.    Tel.    Co.    v.    Cunningham,    99    Ala.  Hill,  26  S.  W.  252    ($500)  ;   West.  U. 

314,  14  So.  579  ($500.)  Tel.  Co.  v.  Porter,  26  S.  W.  866    ($1,- 

1 7idiana.— West.  U.  Tel.  Co.  v.  Strat-  000)  ;   West.  U.  Tel.  Co.  v.   Kensley,  8 

emeier,  6  Ind.  App.  125   ($500)  ;  West.  Tex.    Civ.    App.    527,    28   S.    W.    831 

U.   Tel.   Co.   V.   Newhouse,   6   Ind.   App.  ($750)  ;    West.    U.   Tel.   Co.   v.   O'Keef 

442      ($400);      West.     U.       Tel.      Co.  29  S.  W.  1137    ($1,000)  ;   West.  U.  Tel 

V.  Cain,  14  Ind.  App.  115  ($225).  Co.  v.  Guest,  33   S.  W.    281     ($450) 

Kentucky.— West.   U.     Tel.     Co.     v.  West.    U.   Tel.   Co.   v.   Russel,    12   Tex 

Fisher,   107   Ky.     513,   54   S.     W.   830  Civ.  App.  82,  33  S.  W.  708    ($1,500) 

($300);  West.  U.  Tel.  Co.  v.  Mcllvoy,  West.  U.  Tel.  Co.  v.  Johnson,  16  Tex 

107  Ky.  633,  55  S.  W.  428      ($1,000).  Civ.  App.  546,  41   S.   W.  367    ($400) 

Tennessee.— West.     U.     Tel.     Co.     v.  West.  U.  Tel.  Co.  v.  Thompson,  18  Tex 

Frith,    105    Tenn.    167,   58    S.    W.    118,  Civ.   App.   279,   44   S.   W.   402    ($200) 


§   016] 


MEASURE  OF  DAMAGES. 


593 


§  616.     Nominal  damages. 

Under  the  rule  of  the  common  hiw,  only  actual  damages  could  be 
recovered  where  an  actual  loss  had  been  sustained,  but  it  is  now  well 
settled  that,  where  there  is  an  infringement  of  a  legal  right,  nominal 
damages  may  be  awarded,  although  there  is  no  evidence  of  actual 
damages  having  been  sustained.^^  Damages  are  not  always  merely 
pecuniary,  but  an  injury  imports  damages  where  a  person  is  thereby 
deprived  of  his  rights."^  Where  the  evidence  shows  that  a  person's 
legal  rights  have  been  violated,  the  claim  to  damages  accrues;  and 
the  fact  that  the  precise  nature  and  extent  of  the  damages  is  not  capa- 
ble of  being  exactly  ascertained,  will  not  serve  to  divest  him  of  his 
rights  to  recover,'^''  nor  will  such  rule  be  affected  by  the  fact  that  the 
damages  are  so  small  that  they  cannot  be  readily  estimated.^^  In 
such  cases,  if  the  plaintiff  has  suffered  some  loss,  but  it  is  so  small 
that  the  jury  cannot  ascertain  the  amount,  but  nevertheless  renders  a 
verdict  for  the  defendant,  the  court  may  permit  the  plaintiff  to  have 
a  verdict  for  nominal  damages.'"  The  rule  in  these  particulars,  will 
not  be  affected  by  the  fact  that  the  plaintiff  has  been  benefited  by  the 
wrong ;  ''^  nor  by  the  fact  that  the  loss  has  been  subsequently  re- 
paired ;  ''^  nor,  that  the  action  is  brought  in  contract  or  in  tort.*^  In 
actions  against  telegraph  companies,  the  cost  of  sending  the  message, 
if  it  has  been  paid,  is  always  recoverable,  although  no  substantial 


West.  U.  Tel.  Co.  v.  Trice,  48  S.  W 
770  ($1,000)  ;  West.  U.  Tel.  Co.  v 
Fatten,  55  S.  W.  973  ($1,000)  ;  West 
U.  Tel.  Co.  V.  Norris,  25  Tex.  Civ.  App 
43,  60  S.  W.  982  ($1,000)  ;  West.  U 
Tel.  Co.  V.  Rice,  61  S.  W.  327  ($750) 
West.  U.  Tel.  Co.  v.  Griffin,  27  Tex 
Civ.  App.  306,  65  S.  W.  061,  ($750 
West.  U.  Tel.  Co.  v.  James,  73  S.  W 
79  ($1,995);  West.  U.  Tel.  Co.  v 
Hines,  22  Tex.  Civ.  App.  315,  54  S.  W 
627    ($780). 

"Stein  V.  Burden,  24  Ala.  130,  60 
Am.  Dec.  433;  Thompson  v.  New  Or- 
leans, etc.,  R.  Co.,  M  Miss.  315,  19  Am. 
Rep.  12;  New  York  Rubber  Co.  v. 
Rothcry,  132  N.  Y.  293,  30  X.  E.  841. 
•28  Am.  St.  Rep.  575. 
T.  &  T.— 3S 


'*Ashby  V.  White.  2  Ld.  Raym.  938 
3  Ld.  Raym.  320. 

•"  Seaboard  Mfg.  Co.  v.  Woodson,  98 
Ala.  378,  11  So.  733;  Taylor  v.  Bradley. 
39  N.  Y.   129,   100  Am.  Dec.  415. 

••Glass  V.  Garber,  55  Ind.  336;  Se- 
neca Road  Co.  V.  Auburn,  etc.,  R.  Co.. 
5  Hill.   (X.  Y.)    170. 

"  Feize  v.  Thompson,   1   Taunt.   121. 

"Watts  V.  Weston,  62  Fed.  136,  10 
C.  C.  A.  302;  Williams  v.  BrowTi.  7il 
Iowa  643,  41  N.  W.  377. 

"Dow  V.  Humbert,  91  U.  S.  294,  2:? 
L.  Ed.  368. 

*>  Havens  v.  Hartford,  etc.,  R.  Co.,  2S 
Conn.  69;  Wild  v.  Orleans,  12  La.  Ann. 
16. 


5'94  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [<^    616 

damages  are  proven,  provided  a  breach  of  the  company's  duty  is 
shown,  but  not  othenvise.^^  There  cannot  be  an  infringement  of  the 
sender's  legal  rights  unless  the  company  is  guilty  of  a  breach  of  some 
of  its  duties,  and  it  is  error  for  the  court  to  instruct  the  jury  that  the 
plaintiff  is,  in  any  event,  entitled  to  recover  the  cost  of  sending  the 
message,  since  this  fact  depends  upon  the  proof  of  the  negligence  of 
the  company.^^ 

""West.   U.   Tel.   Co.   v.   Lawson,      66       468;    Thompson   v.    West.   U.   Tel.   Co., 
Kan.  660,  72  Pac.  283;  Kennon  v.  West.       106  N.  C.  549,  11  S.  E.  269. 
U.  Tel.  Co.,   126  N.   C.   232,  35   S.  E.  «=  Thompson  v.  West.  U.  Tel.  Co.,  106 

K.  C.  549,  11  S.  E.  269. 


CHAPTER  XXVI. 

STATUTORY   PENALTY. 

§  617.    Object  and  purpose. 

618.  Construction  of  statutes — in  general — penal. 

619.  Same  continued — intention  of  statute — must  not  be  defeated 

by  construction. 

620.  A  penalty — not  damages — for  person  injured. 

621.  Who  mantain  suit. 

622.  Extraterritorial  effect— not  any. 

623.  Constitutionality  of  statutes. 

624.  Indiana  statute. 

625.  Character  and  form  of  message — "futures." 

626.  Same  continued — form — cipher  telegrams. 

627.  Same    continued — written    on    message    blank — waiver     of 

right. 

628.  Breach  of  duty — proof  of. 

629.  Same  continued — amount  of  proof. 

630.  Complaint  and  proof  must  fall  under  statute. 

631.  Complaint — allegations  therein. 

632.  Actual  damages — need  not  prove. 

633.  Same  continued — does  not  bar  action  for  damages. 

634.  Actions  survive. 

635.  Connecting  line — liable. 

636.  Defenses — office  hours. 

637.  Same  continued — free  delivery  limits. 

638.  Same  continued — not  under  operation  of  statute — contribu- 

tory negligence. 

639.  Same  continued — harmless  errors. 

640.  Same  continued — Sunday  dispatches. 

641.  Stipulations — time  for  presenting  claim — effect  of. 

642.  Accord  and  satisfaction. 

643.  Prepayment  of  charges. 

644.  Repeal  of  statute — effect  of. 

§  617.     Object  and  purpose. 

We  have  already  made  a  somewliat  lengthy  discussion  in  regard  to 
the  rights  to  recover  from  a  telegraph  company  damages  actually  sus- 
tained as  a  result  of  errors  negligently  made  in  the  transmission  or 
delivery  of  a  message  concerning  business  transactions,  and  the  in- 
ability to  recover  any  other  damages  in  the  absence  of  proof  of  some 
loss.    We  have  also  discussed  the  right  to  recover  damages  from  these 

(595) 


506  TELEGRAPH  AND  TELEPHONE   COMPANIES.  \_^    617 

companies  for  mental  suffering  and  angiiisli  in  consequence  of  a  fail- 
ure to  promptly  deliver  messages  containing  announcements  of  cer- 
tain affairs ;  and  the  unsoundness  of  the  doctrine  upon  which  actions 
brought  for  this  purpose  were  maintained;  and  we  have  elsewhere 
commented  somewhat  upon  the  inadequacy  of  the  common-law  reme- 
dies to  recover  damages  for  every  wrong  or  failure  of  duty  of  these 
companies,  on  account  of  their  peculiar  nature ;  and,  also  made  some 
suggestions  as  to  how  this  inadequacy  could  be  and  was  to  a  certain 
extent  overcome  by  statutes  amending  the  common-law  rule.  So,  we 
shall  now  discuss  statutes  of  this  nature  which  have  been  adopted  in 
some  of  the  states  of  the  Union.  On  account  of  the  inadequacy  of  the 
common-law  remedy  to  enforce  the  duty  of  these  companies,  in  every 
particular,  with  respect  to  the  transmission  and  delivery  of  mes- 
sages— particularly  in  cases  in  which,  from  their  nature,  substantial 
damages  are  not  recoverable — statutes  have  been  adopted  in  many 
states,  providing  for  the  recovery  of  a  fixed  money  penalty  from  these 
companies  for  a  negligent  failure  to  properly  discharge  their  duty. 
The  duty  designed  to  be  enforced  by  these  statutes  is  threefold  in  its 
nature :  first,  to  transmit  messages  tendered  for  that  purpose  wath  the 
charges  established  by  the  rules  of  the  company;  second,  to  receive 
and  transmit  such  messages  with  impartiality  as  to  the  order  of 
transmission ;  and  third,  to  transmit  and  deliver  such  messages  in 
good  faith  and  with  due  diligence.^ 

§  618.     Construction  of  statutes — in  general — penal. 

The  object  of  these  statutes  is  to  fix  a  penalty  upon  telegraph  com- 
panies for  a  breach  of  duty  which  they  owe  to  the  public  generally, 
and  not  to  assess  a  certain  fixed  amount  of  damages  for  the  non-per- 
formance of  a  contract  to  properly  transmit  a  dispatch.-  They,  then, 
being  in  the  nature  of  penal  statutes,  or  enacted  for  the  purpose  of 
fixing  a  penalty  on  these  companies  for  a  breach  of  public  duty,  must 
be  strictly  construed.  The  word  "penalty,"  means  a  fine  or  punish- 
ment imposed  upon  anyone  for  a  violation  of  some  duty  which  the 
wrongdoer  is  under  obligations  to  perform,  and  all  statutes  which  en- 

^  Burnett  v.  West.  U.     Tel.   Co.,     39       Ark.    78,    G   S.   W.   230;    West.   U.   Tel. 
Mo.  App.  607.  Co.   V.   Pendleton,   95   Ind.    12,   48   Am. 

'  Fraiienthall  v.  West.  U.  Tel.  Co.,  50      Rep.   692. 


1^    619]  STATUTORY   PENALTY.  597 

croach  upon  the  personal  or  property  rights  of  any  person,  operates 
in  the  nature  of  a  punishment  and  must  therefore  be  strictly  con- 
strued.^ So,  each  statute  must  be  considered  separately  in  its  own 
light,  and  only  that  which  is  expressly  stated  therein  can  be  en- 
forced.^ It  is  not  our  purpose,  however,  to  be  understood  as  saying 
that  the  cause  of  action  is  made  out  altogether  by  one  statute,  but 
that  only  such  construction  can  be  placed  on  each,  separately,  as  is 
expressly  stated  in  it.  It  is  often  the  case  that  one  statute  makes  out 
the  cause  of  action,  while  another  imposes  the  penalty  for  the  viola- 
tion of  the  first.  To  be  more  explicit  in  that  which  has  been  said,  a 
statute  which  provides  that,  on  failure  to  promptly  transmit  a  mes- 
sage, the  company  shall  be  liable  for  a  certain  fixed  penalty ;  a  recov- 
ery of  the  penalty  could  not  be  had,  by  showing  that  the  company  neg- 
ligently or  incorrectly  transmitted  the  message,  or  where  it  provides 
that  the  penalty  shall  lie  imposed  where  there  is  a  negligent  transmis- 
sion, and  the  action  is  to  recover  the  penalty  on  an  oral  message,  or 
the  failure  to  promptly  deliver  a  written  one,  the  penalty  cannot  be 
recovered ;  neither  can  there  be  a  recovery  by  the  addressee  where  the 
^^tatute  provides  that  the  sender  shall  maintain  such  suits;  but  the 
rule  is  otherwise,  if  it  provides  that  the  party  aggrieved  may  recover. 

§  619.     Same  continued — intention  of    statute — must    not    be    de- 
feated by  construction. 

It  is  generally  held,  that  these  statutes  must  be  strictly  construed, 
yet  that  construction  must  not  be  placed  on  them  which  will  defeat 
the  manifest  purpose  of  the  legislature  in  enacting  them.^     There  are 

'Pelliiuii    V.    Stcanibuat      ^Messenger,  ^Arkansas. — Fraucnthall   v.    Wost.  U- 

16  La.  Ann.  99;  Flint  River  Steamboat  Tel.  Co.,  .50  Ark.  78. 

Co.  V.  Foster.  ."5   Ga.   194,  48  Am.  Dec.  California.— Thuru   v.   Alta   Tel.   Co., 

248;    Chalker   v.   Chalker,    1    Conn.   79.  15  Cal.   473. 

6  Am.  Dee.   20G;    McAfee  v.   Southern  Georf/ia. — Langley   v.    West.    U.    Tel. 
R.  Co.,  30  Miss.  009:   Brady  v.  North  Co.,  87  Ga.   777.   13   S.  E.   904;   Green- 
western  Ins.  Co.,   11   :\Iich.  451;   Balti-  hurn;  v.  West.  U.  Tel.  Co.,  89  Ga.  754, 
more,  etc..  Tel.  Co.  v.  Lovejoy.  48  Ark.  15  S.  E.  651. 
301.  Indiana. — West.   U.  Tel.  Co.     v.  Ax- 

*Connell   v.    West.    U.    Tel.    Co.,    110  tell,   69   Ind.   199;   Hadley  v.  West.  U- 

:Mo.   34,  20   L.   R.   A.   172,  38  Am.   .St.  Tel.   Co.,   115   Ind.   191;    West.   U.   TeL 

Rep.  575.  22  S.  W.  345.  Co.  v.  Roberts,  89  Ind.  377;   West.  U. 

Tel.  Co.  V.  Kilpatrick.  97  Ind.  42. 


598  TELEGRAPH  AND  TELEPHONE  COMPANIES.  ['^    619 

different  degrees  of  strictness  to  be  placed  on  penal  statutes;^  and 
it  seems  that,  on  account  of  the  objects  for  which  these  were  enacted, 
the  most  strict  degree  should  not  be  insisted  upon  by  the  courts.  It  is 
the  object  in  the  construction  of  penal,  as  all  other  statutes,  to  ascer- 
tain the  true  legislative  intent;  and,  while  the  courts  will  not  apply 
such  statute  to  cases  which  are  not  within  the  obvious  meaning  of  the 
language  employed  by  the  legislature,  even  though  the  cases  may  be 
within  the  mischief  intended  to  be  remedied,'^  they  will  not,  on  the 
other  hand,  apply  the  rule  of  strict  construction  with  such  technicali- 
ties as  to  defeat  the  purpose  for  which  the  statute  was  enacted.*  As 
said  at  first,  the  object  of  these  statutes  is  to  provide  a  remedy  for  the 
enforcement  of  duties  and  obligations  which  these  companies  owe  to 
the  public  generally,  and  which  are  not  recognized  by  the  common- 
law  remedies ;  on  account  of  this,  and  for  the  further  fact  that  it  has 
become  absolutely  necessary  that  some  remedy  should  be  provided 
for,  in  order  that  these  companies  may  not  become  derelict  in  their 
duties  toward  the  public,  these  statutes  should  not  be  construed  in  the 
strictest  degree,  and  the  purpose  and  intention  of  the  legislature  is 
that  they  shall  not  be.^  Thus,  where  a  statute  provides  that  on  fail- 
ure of  a  telegraph  company  to  correctly  transmit  and  promptly  de- 
liver all  messages  tendered  to  it  for  transmission,  the  latter  will  be 
liable  to  a  penalty  to  the  party  aggrieved,  a  construction  of  this  stat- 
ute in  its  strictest  terms  would  mean  that  the  message  should  have 
been  delivered  to  the  company  in  writing,  and  the  same  has  been  so 

Iowa.— Taylor  v.  West.  U.  Tel.   Co.,  'United  States  v.  Hartwell,  6  Wall. 

95  Iowa  740,  64  N.  W.  660.  (U.    S.)    395;    State  v.   McCrystol,   4.3 

Mississippi.— Wi\km?i     v.    West.     U.  La.  Ann.  907,  9  So.  922;  State  v.  Arch- 
Tel.  Co.,  68  Miss.  6,  8  So.  678;  Cum-  er,  73  Md,  44. 

berland,   etc.,   Tel.    Co.   v.    Sanders,   35  ^Crosby  v.  Hawthorn,  25  Ala.  221; 

So.  653.  Parkinson  v.  State,  14  Md.  184,  74  Am. 

South  Dakota.— Kirhy  v.    West.    U.  Dec.    522;    State    v.    Walsh,    43    Minn. 

Tel.  Co.,  4  S.  Dak.  463.  444;  Doggett  v.  State,  4  Conn.  61,  10 

Georgia. — Moore  v.  West.  U.  Tel.  Co.,  Am.  Dec.   100;   United  States  v.  Wilt- 

87    Ga.    613,  .13    S.   E.   C39.      Compare  berger,  5  Wheat.   (U.  S.)  76. 

Horn  V.  West.  U.  Tel.  Co.,  88  Ga.  538,  »  See  note  6. 

15  S.  E.  16.  •  West.  U.  Tel.  Co.  v.  Wilson,  16  Am. 

Missouri. — Thompson     v.     West.     U.  &  Eng.  Corp.  Cas.  259;   West.  U.  Tel. 

Tel.  Co.,  32  Mo.  App.  191.  Co.  v.  Meredith,  8  Am.  &  Eng.  Corp. 

Virginia.— West.  U.  Tel.  Co.  v.  Pow-  Cas.  54;    West.  U.  Tel.  Co.  v.  Pendle- 

ell,  94  Va.  278,  26  S.  E.  829.  ton,  95  Ind.  12,  48  Am.  Rep.  692. 


<^    621]  STATUTORY   PENALTY.  59^ 

held;  ^"  but  the  circiunstances  of  the  case  may  be  such  as  to  give  a 
less  degree  of  strict  construction,  so  as  to  warrant  a  recovery  of  the 
penalty,  although  the  message  was  telephoned  to  the  operator. '  ^ 

§  620.     A  penalty — not  damages — for  person  injured. 

The  penalty  provided  by  these  statutes  is  different  from  those  im- 
posed for  the  commission  of  a  crime.  In  these  latter  statutes,  the 
wTong  or  crime  is  one  committed  more  directly  against  the  state,  and 
for  this  reason  the  penalty  should  go  to  the  state.  In  those  statutes 
enacted  for  the  express  purpose  of  enforcing  the  duties  which  tele- 
graph companies  owe  to  the  public,  the  wrong  inflicted  is  more  of  a 
personal  injury,  or  one  in  which  the  injured  party  is  more  directly 
concerned,  and,  for  this  reason,  the  penalty  is  one  to  be  recovered  by 
him.  ^2  It  must  be  understood  that  the  penalty  is  not  damages,  or  a 
compensation  to  be  recovered  for  the  loss  sustained  by  the  injured 
person,  but  it  is  purely  a  penalty.  It  is  imposed  particularly  as  a 
punishment  on  the  company  for  a  breach  of  its  duty,  and  to  be  an  ob- 
ject lesson  to  others,  and,  at  the  same  time,  the  injured  person  is  pe- 
cuniarily benefited  for  the  wrong, 

§  621.     Who  maintain  suit. 

As  will  be  seen  in  another  part  of  this  work,  the  sender  under  the 
English  rule  could  only  maintain  an  action  against  a  telegraph  com- 
pany for  a  breach  of  a  contract  of  sending,  since  the  privity  of  con- 
tract only  existed  between  the  sender  and  the  company.  This  rule 
has  not  been  followed  in  our  states,  but  the  sendee,  under  the  Ameri- 
can rule,  can  sue  as  well  the  sender.  ^=^  With  respect  to  who  shall 
maintain  the  action,  under  these  statutes,  the  statutes  themselves 
must  be  referred  to  in  order  to  ascertain  this  fact.  While  the  stat- 
utes are  similar  in  nature,  yet  the  wording  of  each  is  not  always  the 
same,  and  the  least  difference  in  the  wording  might  cause  quite  a  dif- 
ferent construction  to  be  placed  on  each.     Thus,  some  of  these  stat- 

"  Cumberland,  etc.,  Tel.   Co.  v.   San-  "West.  U.  Tel.  Co.  v.  Pendleton,  05 

ders,  35  So.  G53;   Wilkins  v.  West.  U.  Ind.  12.  48  Am.  Rep.  697. 

Tel.  Co.,  68  Miss.  6,  8  So.  678.  "West.  U.  Tel.  Co.  v.  Pendleton,  95 

"West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  Ind.   12,  48  Am.  Rep.  697. 
G58,  30  Am.   St.  Rep.  579.   13   So.  471. 


600  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    621 

utes  provide  that,  on  a  failure  of  a  prompt  delivery,  the  sender  of  the 
message  maj  recover  a  certain  penalty.  It  has  been  held,  under 
These,  that  no  one  except  the  sender  could  maintain  the  action.^'*  In 
other  statutes,  it  is  provided  that  any  person,  or  any  one  injured  by 
such  failure  of  duty,  may  recover  the  penalty.  Under  these  provis- 
ions, either  the  sender  or  the  addressee  may  recover  the  penalty  when 
tlie  default  is  shown, ^^  It  is  on  account  of  the  strict  construction 
placed  on  these  statutes  that  these  different  rales  are  adhered  to. 
If  the  statute  fails  altogether  to  provide  by  whom  the  action  may  hv. 
brought,  it  has  been  held  that  the  rules  applicable  in  an  ordinary  ac- 
tion for  damages  apply.  ^^ 

§  622.     Extraterritorial  effect — not  any. 

It  is  the  general  rule  that  w^hen  a  liability  imposed  by  the  statute 
of  a  state  is  in  its  nature  a  penalty,  such  liability  cannot  be  enforced 
beyond  the  state  in  which  the  statute  was  enacted ;  or,  in  other  words, 
such  statutes  have  no  extraterritorial  effect.  As  said,  these  statutes 
are  penal  and,  independently  of  the  constitutional  question  in  this 
connection,  cannot  be  enforced  beyond  the  limits  of  the  state  enacting 
them.^'^     It  is  not  meant  by  this,  however,  that  these  statutes  can  onlv 

»*Tel.    Co.   V,   Brown,    108   Ind.    538;  Missouri.— mxke    v.    West.     U.    Tel. 

Hadley  v.   West.  U.  Tel.  Co.,   115  Ind.  Co.,  96  Mo.  App.  406,  70  S.  W.  265,  2 

191.  L.  E.  A.  78n;  Connell  v.  West.  U.  Tel. 

"  West.  U.  Tel.  Co.  v.  Allen,  66  Miss.  Co.,   108  Mo.  459,   18  S.   W.   88.3. 

549,   6   So.   461.  Neto  Yorfc.— Hearn  v.  West.   U.   Tel. 

« Hadley  v.   West.   U.   Tel.   Co.,    115  Co.,  36  Misc.    (N.  Y.)    557. 

Ind.   191.  Tennessee.— West.  U.  Tel.  Co.  v.  Mel- 

"  United   States.— West.    U.   Tel.   Co.  Ion,    100  Tenn.   429. 

V.  Texas,  105  U.  S.  464,  reversing  West.  In   Indiana,   the   contract   of   sendin;L' 

U.   Tel.   Co.   V.   Pendleton,    95   Ind.    12,  must   have   been   made    in   that   state: 

48   Am.   Rep.   692.  Carnahan  v.  West.  U.'Tel.  Co.,  89  Ind. 

Arkansas. — Little   Rock,     etc.,     Tel.  526,  46  Am.  Rep.  175;  Rogers  v.  West. 

Co.  V.  Davis,  41  Ark.  79.  U.  Tel.  Co.,   122  Ind.  395,  17  Am.  St. 

Georgia.— West.  U.  Tel.  Co.  v.  Mich-  Rep.   373;    West.   U.   Tel.  Co.  v.  Reed, 

flson,  94  Ga.  436,  21  S.  E.  169.  96  Ind.  195.    And  the  breach  must    not 

Iowa. — Taylor  v.   West.   U.  Tel.   Co.,  have  occurred  in  another  state:   West. 

95  Iowa  740,  64  N.  W.  660.  U.  Tel.  Co.  v.  Carter,  156  Ind.  531,  60 

Mississippi. — Alexander   v.    W^est.    U.  X.  E.  305,  overruling  West.  U.  Tel.  Co. 

Tel.  Co.,  66  Miss.  161,  5  So.  397,  3  L.  v.  Pendleton,  95   Ind.    12,  48  Am.  Rep. 

R.  A.  71,  14  Am.  St.  Rep.  556.  093. 


<^    622]  STATUTORY  PENALTV.  601 

be  enforced  where  the  coiupauy  has  failed  to  discharge  its  duty  with 
respect  to  the  delivery  of  such  messages  as  are  transmitted  wholly 
within  the  state;  but  if  the  message  is  sent  from  one  state  into  an- 
other, and  the  wrong  has  been  committed  in  the  state  of  sending,  the 
penalty  may  be  recovered. ^^  It  is  held  by  some  that  the  duty  im- 
posed by  these  statutes  is  a  continuous  one,  and  is  not  one  performed 
by  the  company  by  merely  discharging  its  duty  with  respect  to  mes- 
sages transmitted  within  the  state  of  this  enactment.  Judge  Elliott 
said,  while  discussing  this  point :  "The  duty  which  the  statute  seeks 
to  enforce  is  owing  here  in  Indiana  and  not  elsewhere;  it  was  here 
that  the  contract  was  made  which  imposed  the  duty  on  the  telegraph 
<>ompany,  and  it  was  here  that  the  failure  occurred,  for  the  message 
was  not  transmitted,  as  the  law  commands,  in  good  faith  and  with 
diligence  and  impartially.  The  duty  which  the  company  failed  to 
perform  was  not  a  duty  owing  in  Iowa,  but  was  a  duty  owing  in  In- 
diana, where  the  parties  executed  the  contract  out  of  w-hich  the  duty 
arose.  The  duty  of  the  company  did  not  end  at  the  state  line ;  it  ex- 
tended throughout  the  whole  scope  of  the  undertaking  and  required 
the  message  to  be  transmitted  and  delivered  in  good  faith  and  with 
reasonable  diligence  to  the  person  to  whom  it  was  sent.  The  breach 
of  duty,  no  matter  where  the  specific  act  constituting  it  occurred,  was 
a  breach  here  and  not  elsewhere.  The  duty  is  a  general  and  a  con- 
tinuous one,  and  if  not  performed,  irrespective  of  the  place  where  the 
failure  occuin-ed,  is  a  breach  of  the  duty  at  the  place  of  the  crea- 
tion." ^^  But  this  case  has  since  been  oven-uled*.  It  is  held  in 
Georgia  that  if  the  non-delivery  to  the  sender  was  due  to  some  do- 
fault  or  other  cause  arising  beyond  the  limits  of  the  state  in  which  it 
was  received  for  transmission,  recovery  could  not  be  had.^^  In  In- 
diana, the  penalty  cannot  be  recovered  if  the  contract  of  sending  was 
made  in  another  state,  nlthoufrh  the  default  may  have  oceurred  in 
that  state.- ^ 

"West.  U.  Tel.  Co.  v.  James,  90  Ga.  *  West.  U.  Tel.    Co.    v.    Carter,    15(i 

254,    16   S.   E.   83,   affirming   162  U.   S.  Ind.  531,  60  N.  E.  305. 

650;    West.   U.   Tel.   Co.   v.   Howell,   95  -""West.  U.  Tel.  Co.  v.  Howell,  95  Ga. 

Ga.  194,  22  S.  E.  286,  51  Am.  St.  Rep.  194,  51   Am.   St.   Rep.  68,  30  L.   R.  A. 

68;    Butner     v.   West.   U.  Tel.     Co.,   2  158,  22  S.  E.  286. 

Okla.  235.  -'Rogers   v.    West.    U.    Tel.    Co..    122 

"West.  U.  Tel.   Co.  v.  Ptiulleton,  95  Ind.   395,    17   Am.   St.  Rep.  373,  24   X. 

Ind.   12,  48  Am.  Rep.  093.  E.  157. 


602  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [^    623 

§  623.     Constitutionality  of  statutes. 

The  principal  grounds  upon  which  the  constitutionality  of  these 
statutes  have  been  attacked  is,  that  to  enforce  such  would  be  an  in- 
terference with  the  exclusive  power  of  Congress  over  interstate  com- 
merce. One  reason  why  it  was  claimed  that  they  were  in  violation  of 
the  clause  of  the  federal  constitution  wherein  the  control  of  inter- 
state commerce  was  vested  in  Congress  was,  that  they  applied  only  to 
teleg-raph  companies  and  thereby  denied  these  companies  the  equal 
protection  of  the  law;  but  it  has  been  held  that  while  they  apply  to 
these  companies,  yet  they  apply  equally  to  all  companies  of  that 
class. ^"  Another  reason  for  claiming  that  they  were  in  violation  of 
the  federal  constitution  with  respect  to  interstate  commerce  was,  that 
they  impaired  the  obligation  of  the  contract  of  sending,  in  that  they 
made  a  different  liability  from  that  assumed  in  the  contract ;  but  this 
reason,  in  so  far  as  it  applied  to  person  other  than  the  sender,  has 
been  held  unfounded.^^  So,  it  is  generally  held,  both  by  the  state  and 
the  federal  courts,  that  these  statutes  are  not  in  conflict  with  the  con- 
stitution of  the  United  States,  in  so  far  as  they  interfere  with  Con- 
gTess  in  the  control  of  interstate  commerce. 

^^  West.  U.  Tel.  Co.  v.  Ferguson,  157  dom  of  commercial  intercourse,  or  dis- 

Ind.  37,  60  N.  E.  679;   West.  U.  Tel.  criminate  in  favor  of  the  products  of 

Co.  V.  Mellon,  100  Tenn.  429.     Elliott,  one  state,   or  grant  commercial  rights 

J.,   while  discussing  the  Indiana  stat-  to  the  citizens  of  some  particular  state 

ute,.  said:    "No  discrimination  is  made  and   deny   them   to   others,   but   we   do 

in  favor  of  any  person,  or  in  favor  of  maintain,  that  the  sovereign  state  has 

any   article   of   commerce,   the   freedom  power  to  enact  laws  requiring  persons, 

of      commercial      intercourse      is      not  artificial   or     natural,   doing     business 

abridged,  and  no  new  duty   or  burden  within    its    borders,    to    transact    that 

is  imposed     upon  the     company.     The  business    with    fairness,    diligence    and 

statute  secures  to  all  alike  the  privi-  impartiality.     A  statute  operating  up- 

lege  of  demanding  that  the  duties  of  a  on  persons   within   the  state   declaring 

corporation  be     performed   with     dili-  an   existing  duty,   adding  neither  new 

gence,    impartiality   and   good    faith.  It  nor    additional    ones,    usurps    no   fune- 

enforces  an    existing    duty,    and    pro-  tion   of  the  Federal  Congress,  and  in- 

vides  a  penalty,  but     it     confines     the  fringes    no    constitutional     provision:" 

duty     to     no     class     and     denies     the  West.  U.  Tel.  Co.  v.  Pendleton,  95  Ind. 

penalty  to  none.     It  is  impossible     to  12,  48  Am.  Eep.  694.     See  also  Sher- 

conceive  the  slightest  restriction  upon  lock  v.  Ailing,  93  U.  S.  99;  County  of 

commercial  intercourse,  or  the  faintest  Mobile  v.   Kimball,   102   Id.  691. 
discrimination   in   favor   of  any  person  *' West.  U.  Tel.  Co.  v.  James,  162  U. 

or   thing.     Granting  then  the   lack   of  S.  650. 
power  in  the  state  to  abridge  the  free- 


(^    625]  STATUTORY   PENALTY.  603 

§  624.     Indiana  statute. 

The  constitutionality  of  the  Indiana  statute"^  was  assailed,  but  the 
cotirt  held  that  the  statute  was  valid  and  constitutional,  even  when 
applied  to  messages  sent  to  another  state,  and  not  violative  of  the 
United  States  constitution,  giving  to  Congress  the  power  to  regulate 
commerce  between  the  states,  and  that  it  was  a  valid  exercise  of  the 
police  power  belonging  exclusively  to  the  state.  On  this  point  the 
court  said:  "The  statute  operates  in  favor  of  the  sender  of  a  mes- 
sage delivered  to  an  office  in  this  state,  and  upon  a  corporation  repre- 
sented within  our  borders  by  its  agents  and  officers.  The  parties 
are,  therefore,  within  our  jurisdiction.  The  duty  which  the  statute 
assumes  to  enforce  is  one  arising  in  Indiana,  for  it  grows  out  of  and 
is  founded  upon  an  undertaking  entered  into  in  this  state.  The  par- 
ties and  subject-matter  being  within  our  jurisdiction,  they  are  sub- 
ject to  our  laws.  Persons  and  property  within  the  jurisdiction  of  a 
state  are  subject  to  the  laws  of  that  state."^^ 

§  625.     Character  and  form  of  message — "futures." 

These  statutes  generally  provide  that,  on  failure  to  transmit  or  de- 
liver any  message,  the  company  will  be  liable  to  a  certain  penalty ; 
this  means  any  and  all  messages  irrespective  of  the  form  or  character, 
provided  they  are  not  immoral,  libelous  or  fraudulent.  As  it  has 
been  said  elsewhere  in  this  work,  the  object  of  these  companies  is  not 
to  perpetrate  or  assist  in  the  perpetration  of  a  crime,  nor  to  do  any 
act  which  would  subject  them  to  a  civil  action,  and,  of  course,  it  fol- 
lows that  they  would  not  be  under  any  obligation  to  accept  a  message 
for  transmission  which,  to  do  so,  would  make  them  liable  to  a  civil 
or  criminal  action.  If,  then,  a  message  is  tendered  for  transmission, 
the  company  may  refuse  to  transmit  it,  where  it  would  have  this  ef- 
fect, and  still  not  be  liable  for  the  statutory  penalty.  It  is  not  every 
message  whose  object  is  for  an  immoral  or  illegal  purpose,  or  such  as 
would  sup])ort  an  action  for  damages  against  the  company,  that  can 
be  rejected  by  the  company.  Thus,  where  there  is  a  message  tendered 
for  transmission  which  relates  to  transactions  in  "futures,''  the  com- 

"Stat.  417G,  Rev.  Stat.  1781.  =^  West.  U.  Tel.  Co.  v.  Pendleton,  95 

Iiul.   12.  48  Am.  Rep.  094. 


604  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    625 

panj  would  be  under  obligations  to  exercise  the  same  care  and 
promptness  that  it  would  over  any  other  message,-^  unless  there 
should  be  a  statute  which  would  make  it  illegal  for  such  messages  to 
be  transmitted. 

§  626.     Same  continued — form — cipher  telegrams. 

As  said,  these  statutes  apply,  with  few  exceptional  cases,  to  all 
messages,  and  that  whether  they  are  intelligible  or  not.  Messages  are 
often  written  in  cipher,  the  meaning  of  which  is  generally  known 
only  by  the  sender  and  the  addressee.  Where  this  is  the  case,  the 
company,  as  we  have  elsewhere  shown,  may  require  the  sender  to  in- 
form it  of  the  nature  of  the  'message ;  or,  in  other  words,  the  sender 
should  do  this  voluntarily  in  order  that  he  may  hold  the  company 
liable  for  any  mishaps  or  losses  sustained  in  its  transmission.  If 
the  company  has  no  information  of  the  nature  of  the  message,  it 
would  not  be  liable  for  all  the  consequences  arising  from  a  failure  to 
transmit  and  deliver  same.  But,  if  the  message  should  be  written  in 
cipher  and  accejDted  by  the  company,  for  transmission,  the  latter 
would  be  liable  for  the  statutory  penalty,  if  the  message  was  not  sent 
at  all,  although  the  company  may  not  have  had  knowledge  of  its  pur- 
pose or  contents.-^  While  the  company  may  have  refused  to  accept 
such  message,  yet,  on  the  acceptance  of  it,  the  duty  was  then  as- 
sumed. It  is  the  assumption  of  the  duty,  and  the  failure  to  perform 
same,  and  not  the  form  of  the  message,  that  makes  out  the  case  for 
the  statutory  penalty. 

§  627.     Same  continued — written  on    message    blank — waiver    of 
right. 

One  of  the  stipulations  generally  provided  for  by  these  companies 
is,  that  all  messages  must  be  written  on  the  blank  forms  furnished 
by  them.  It  is  generally  held  by  the  courts  that  these  stipulations 
are  reasonable  and  are  therefore  enforcible.  So,  when  a  message  is 
written  on  any  paper  other  than  these  forms,  the  company's  opera- 
tor may  refuse  to  accept  same,  and,  in  doing  so,  he  would  not  sub- 

^'Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  ^  Gray  v.  West.  U.  Tel.  Co.,  87  Ga. 

3,50,  14  L.  Pv.  A.  95,  13  S.  E.  .562,  27  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259, 
Am.  St.  Rep.  2.59.  14  L.  R.  A.  95. 


§    628]  STATUTORY   PEXAT/rV.  605 

ject  the  company  to  the  statutory  penalty.-*  If,  however,  the  opera- 
tor accepts  such  message,  the  fact  that  it  was  not  written  on  one  of 
the  company's  bhmks  will  be  no  defense  to  an  action  to  recover  the 
penalty. -'^  It  is  presumed,  in  such  cases,  that  the  company  has 
waived  the  right  acquired  under  the  stipulation.  But  in  order  to 
hold  the  company,  even  under  these  state  of  facts,  the  operator  must 
have  known  that  the  writing  was  a  message.  Thus,  where  the  mes- 
sage was  written  on  a  piece  of  memorandum  paper  and  handed  to  the 
operator  by  the  sender's  servant  in  such  a  casual  way  as  not  to  indi- 
cate that  it  was  a  message  for  transmission,  this  fact  will  be  a  good 
defense  under  the  statute.^^  In  this  instance,  there  would  not  be  a 
presumption  of  a  waiver  of  the  right,  unless  the  operator  knew  it  was 
a  message. 

§  628.     Breach  of  duty — proof  of. 

Where  the  plaintiff  brings  an  action  against  a  telegraph  company 
to  recover  the  statutory  penalty  imposed  for  a  failure  to  promptly 
transmit  or  deliver  a  message,  he  must  prove  the  breach  of  such  duty 
in  order  to  recover.^  ^  The  statute  being  penal,  the  case  must  not  only 
be  one  covered  by  such,  and  under  which  it  is  accurately  described, 
but  it  must  also  be  proved  as  alleged  in  the  bill  of  complaint.  In  ac- 
tions brought  against  these  companies  to  recover  damages  as  a  result 
of  their  negligence,  a  prima  facie  case  is  made  out  when  it  is  shown 
that  the  message  was  accepted  by  the  company  and  that  it  was  de- 
layed in  transmission  or  delivery  an  unreasonable  time;  or,  that  the 
message  as  received  by  the  addressee  was  not  the  same  as  that  deliv- 
ered to  the  company.  The  same  rule  in  this  respect  as  in  other  cases 
against  these  companies  applies  in  actions  brought  to  recover  the  stat- 
utory penalty,  except  that  it  is  not  necessary  to  prove  any  loss. 

^  Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D.  Tel.  Co.  v.  Dozier,  07  Miss.  288,  7  So. 

323,  overruling  4  S.  Dak.   105.  40  Am.  325. 
Eep.  765.  "West.   U.   Tel.   Co.   v.    Wilson,    lOS 

=•  West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  Ind.  308 ;   West.  U.  Tel.  Co.  v.  Ward, 

058,  30  Am.  St.  Rep.  579,  13  So.  471.  23   Ind.   377,  85  Am.  Dec.  462;   West. 

»West.    U.    Tel.    Co.    v.    Liddell,    68  U.   Tel.   Co.  v.   Liddell,   68   Miss.    1.  8 

Miss.  1,  8  So.  510.     See  also  West.  U.  So.  510;  Kirby  v.  West.  U.  Tel.  Co.,  7 

S.  Dak.  623. 


606  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [<§    629 

§  629.     Same  continued — amount  of  proof. 

It  has  been  held  in  some  cases  that  the  plaintiff  must  prove  more 
than  mere  negligence  on  the  part  of  the  company,  by  showing  that  it 
acted  in  bad  faith  or  willfully.^^  It  will  be  found,  however,  in  the 
examination  of  the  cases  which  hold  such  a  rule,  that  there  are  only 
particular  instances  when  this  rule  will  apply.  Thus,  when  the  com- 
plaint is  that  the  company  unduly  postponed  the  message  in  order  to 
send  others,  or  that  the  message  was  not  accepted  or  would  not  be  ac- 
cepted, it  must  be  shown  that  the  acts  of  the  company  were  willful  or 
in  bad  faith.  The  contributory  negligence  of  the  sender  in  failing 
to  give  a  sufficiently  definite  address,  although  it  might  be  such  as 
would  afford  a  good  ground  for  a  defense  to  an  action  for  failure  to 
deliver,  is  not  a  defense  where  the  action  is  based  on  the  willful  par- 
tiality of  the  company.^^  But  if  the  action  is  to  recover  the  penalty 
for  failure  to  transmit  or  deliver  a  message,  the  proof  of  ordinary 
negligence  on  the  part  of  the  company  is  sufficient.^* 

§  630.     Complaint  and  proof  must  fall  under  statute. 

As  has  been  elsewhere  said,  the  cause  of  complaint  and  proof  there- 
for must  fall  within  the  statute.  Thus,  a  statute  providing  that  the 
telegraph  company  shall  transmit  and  deliver  messages  with  "due 
diligence,"  and  prescribing  a  penalty  for  a  failure  to  comply  with 
the  terms  of  the  statute,  relates  to  the  time  within  which  messages 
must  be  transmitted  and  delivered,  and  not  to  the  accuracy  and  cor-, 
rectness  in  sending  and  transcribing  them,  and  the  company  is  not 
liable,  by  virtue  of  the  terms  of  the  statute,  for  the  penalty  pre- 
scribed merely  because  it  makes  a  verbal,  though  material,  mistake 
and  error  in  transcribing  a  message  received  and  transmitted.^^     A 

^West.  U.   Tel.   Co.  v.   Swain,     109  ^*  Burnett   v.    West.   U.   Tel.    Co.,   39 

Ind.  405;  West.  U.  Tel.  Co.  v.  Brown,  Mo.   App.   599;    Little  Rock,  etc.,  Tel. 

108  Ind.     538 ;   West.     U.  Tel.  Co.     v.  Co.  v.  Davis,  41  Ark.  79 ;  West.  U.  Tel. 

Steele,   108  Ind.  163;  Hadley  v.  West.  Co.   v.   Lindley,  89   Ga.  484,    15   S.   E. 

U.  Tel.  Co.,  115  Ind.  191;  West.  U.  Tel.  636;    West.    U.   Tel.    Co.    v.    Scircle,   3 

Co.  V.  Jones,  116  Ind.  361;   Weaver  v.  Ind.  227. 

Grand  Rapids,  etc.,  R.  Co.,   107  Mich.  ^  Wilkins   v.   West.    U.   Tel.    Co.,   68 

300.     See  also  Wichelman  v.  West.  U.  Miss.  6,  8  So.  678;   West.  U.  Tel.  Co. 

Tel.  Co.,  30  Misc.   (N.  Y.)   450.  v.  Rountree,  92  Ga.  611,  18  S.  E.  979. 

"=West.  U.  Tel.  Co.  v.  Ferguson,  157  44  Am.  St.  Rep.  93;  West.  U.  Tel.  Co. 

Ind.  37,  60  N.  E.  679.  v.  Pallotta,  81  Miss.  216. 


<^    631]  STATUTORY    PENALTY.  607 

case  is  not  made  out  by  showing  that  the  company  negligently  failed 
to  deliver  a  message,  when  the  statute,  under  which  the  action  is 
brought,  imposes  a  penalty  on  these  companies  for  negligence  or  re- 
fusal to  receive  and  transmit  messages  promptly.^®  A  refusal  to 
transmit,  for  which  the  statute  provides  a  penalty,  is  not  shown  by 
proof  merely  of  a  refusal  to  deliver  after  the  message  has  been  trans- 
mitted.^^ ISTor  is  the  intent  of  the  statute  complied  with  so  as  to 
justify  a  recovery  of  the  penalty  where  it  appears  that  the  company 
made  a  bona  fide  effort  to  transmit  the  message  and  acted  with  impar- 
tiality, although  the  message  was  lost,  and  this,  too,  no  matter  how 
culpable  may  have  been  the  conduct  of  the  company  by  reason  of 
which  the  loss  occurred.^^  Where  the  statute  imposes  a  penalty  for 
the  incorrect  transmission  of  messages,  a  recovery  cannot  be  had  on 
the  proof  of  a  mere  delay  in  transmission.^® 

§  631.     Complaint — allegations  therein. 

To  recover  the  statutory  penalty,  the  complaint  must  aver  facts 
which  bring  the  case  presented  by  it  within  both  the  letter  and  spirit 
of  the  statute.^"  Hence,  the  penalty  cannot  be  recovered  under  the 
statute  unless  the  complaint  alleges  and  the  proof  shows  that  the  de- 
fendant was  engaged  in  business  of  telegraphing  for  the  public.^' 
But  it  need  not  also  appear  that  the  company  was  engaged  in  tele- 
graphing for  hire.^2  j^  a  suit  before  a  justice  of  the  peace  to  recover 
the  penalty,  it  was  held  that  the  complaint  must  aver  and  the  evi- 
dence must  prove  that  the  sender  of  the  message  had  paid  or  tendered 
the  usual  charges  at  the  time  of  sending  it.     "Under  the  provisions  of 

^'Connell   v.   West.   U.   Tel.   Co.,   IIG  ™  West.  U.  Tel.  Co.  v.  McLaurin,  70 

Mo.  34,  20  L.  R.  A.    172,  38  Am.   St.  Miss.  26,  13  So.  36;  West.  U.  Tel.  Co. 

Eep.  575.  V.  McCormick.  27  So.    (Miss.)    GOG. 

"  Brooks  V.  West.  U.  Tel.  Co.,  56  Ark.  *»  West.  U.  Tel.  Co.  v.  Kinney,  4  N. 

224;    Dubley  v.   West.   U.   Tel.   Co.,   54  W.    (Ind.)    512;    West.   U.   Tel.   Co.   v. 

Mo.  App.  391 ;   Eixke  v.  West.  U.  Tel.  Axtell,  69  Ind.  199. 

Co.,  96  Mo.  App.  406.     Compare  West.  "West.   U.   Tel.    Co.    v.   Trissal,     9S 

U.  Tel.  Co.  V.  Gouger,  84  Ind.   106.  Ind.   566;    West.  U.  Tel.  Co.  v.   Fergu- 

»Frauenthal  v.  West.  U.  Tel.  Co.,  50  son,  57  Ind.  499;  West.  U.  Tel.  Co.  v. 

Ark.    78;    Baltimore,   etc.,   Tel.    Co.   v.  Adams,  87  Ind.  598. 

State,  6  S.  W.  513;  Weaver  v.  Grand  "West.   U.   Tel.   Co.    v.    Scircle,    103 

Rapids,  etc..  B.  Co.,  107  Mich.  300,  65  Ind.  227. 
N.  W.  225. 


608  TELEGRAPH  AND  TELEPHONE   COMPANIES.  ["§>    631 

the  statute  .  .  .  it  is  not  every  telegraph  company  which  is  sub- 
ject to  such  penalty  for  such  failure,  but  it  is  a  telegraph  company 
M'hich  has  ^a  line  of  wire  wholly  or  partly  in  this  state,'  that  is  made 
amenable  to  the  penalty  prescribed  by  our  statute  for  the  failure 
to  transmit  a  message,  'on  payment  or  tender  of  the  usual  charge  V  "'*^ 
It  was  held  that  the  averment  in  the  complaint  that  defendant  ''was 
engaged  in  the  business  of  transmitting  telegraphic  messages  for 
hire,"  was  insufficient  as  being  equivalent  to  an  averment  that  the 
defendant  was  "engaged  in  telegraphing  for  the  public,"  as  required 
by  the  statute.^"'  The  court  said:  "A  statute  so  highly  penal  must 
be  construed  strictly.  The  party  claiming  under  it  must  bring  his 
case  clearly  within  the  letter  and  spirit  of  the  act.  Keeping  in  mind 
the  main  purpose  of  the  statute,  its  highly  penal  nature,  and  the 
rule  of  strict  construction,  we  cannot  hold  that  the  words  'engaged  in 
the  business  of  transmitting  telegraphic  messages  for  hire'  are  equiva- 
lent to  the  words  'engaged  in  telegraphing  for  the  public'  ...  A 
court  cannot  create  a  penalty  by  construction,  but  must  avoid  it  by 
construction,  unless  it  is  brought  within  the  letter  and  the  necessary 
meaning  of  the  act  creating  it."  '^^  But  the  complaint  need  not  nega- 
tive the  exceptions  in  the  proviso,  nor  any  facts  of  excuse ;  these  must 
come  from  the  defense.  The  exculpatory  matter  set  forth  in  the  stat- 
ute need  not  be  mentioned  in  the  complaint,  although  available  for 
the  defense.^^  'No  actual  damages  need  to  be  alleged  and  proved  to 
recover  the  penalty  under  the  statute.  "The  statute  fixes  the  amount 
or  penalty  to  be  recovered,  whether  the  actual  damages  be  great  or 
small."  ^'^  A  different  rule  prevailed  under  the  common  law,  where 
it  was  necessary  to  allege  and  prove  actual  damages,  otherwise  nomi- 
nal damages  could  only  be  recovered.^^ 


"West.  U.  Tel.  Co.  v.  Ferguson,  57  Meek,  49  Ind.  53;  West.  U.  Tel.  Co.  v. 

Ind.  495.  Buchanan,    35    Ind.    425,   0      Am.   Rep. 

«  West.  U.  Tel.  Co.  v.  Axtell,  69  Ind.  744. 

199.  "Little   Rock,   etc.,    Tel.    Co.   v.   Da- 

«  Id.  vis,  41  Ark.  79. 

"  West.  U.  Tel.     Co.  v.  Gouger,     84  «  1   Sutherland    on  Damages,    §    10 : 

Ind.  17G;  West.  U.  Tel.  Co.  v.  Ward,  23  Hubbard  v.  West.  U.  Tel.  Co.,  32  Wis. 

Ind.  377;   West.  U.  Tel.  Co.  v.  Lewel-  505. 
ing,  58  Ind.  367 ;  West.  U.-  Tel.  Co.  v. 


<§>    633 J  STATUTORY   PKXALTY.  609 

§  632.     Actual  damages — need  not  prove. 

The  penalty  imposed  by  these  statutes,  as  said,  is  a  punishment  in- 
flicted for  a  violation  of  the  company's  duties,  and  is  not  in  any  sense 
a  compensation  as  liquidated  damages  to  the  injured  person.  It  has 
no  reference  to  the  actual  loss  sustained  by  him  who  sues  for  the 
recovery  of  the  penalty,  but  is  a  means  of  punishing  the  company  for 
its  negligent  aets  and  is  only  recoverable  by  the  person  injured  by 
the  negligence  committed.  As  it  is  not  damages,  or  in  any  sense 
such,  it  is  not  necessary  to  show  that  it  is  to  be  recovered  as  damages ; 
nor  is  it  necessary  to  prove  that  any  actual  damages  have  been  sus- 
tained in  order  to  recover  the  penalty.  While  it  is  not  necessary  to 
prove  actual  damages,  yet  if  such  is  shown  it  will  not  affect  the  right 
to  recover  the  ])enalty.'*^  When  the  negligence  has  been  sufficiently 
shown,  the  company  will  be  liable  for  the  penalty,  although  no  loss 
has  been  sustained.  The  object  of  these  statutes  is  to  enforce  the  du- 
ties and  obligations  which  these  companies  ow.e  to  the  public  gener- 
ally; and  when  it  is  shown  that  they  have  failed  to  properly  and 
promptly  discharge  them,  the  penalty  may  be  recovered. 

§  633.     Same  continued — does  not  bar  action  for  damages. 

An  action  brought  to  recover  the  statutory  j)enalty  is  based  on  a 
separate  and  distinct  ground  from  that  brought  for  the  recovery  of 
damages.  One  is  maintainable  on  the  ground  that  the  company  has 
failed  to  discharge  its  duty  toward  the  public  by  neglect,  refusal  or 
failure  as  to  time  and  the  other  is  brought  to  recover  damages  sus- 
tained as  a  result  of  the  negligence  in  transmission,  by  lx>ing  inac- 
curate, or  that  the  message  is   unreasonably    delayed    in    delivery.^'' 

*»  Little  Rock,  etc..  Tel.  Co.  v.  Davis.  v.  Postal  Tel.  Cable  Co.,  76  iMiss.  278. 

41  Ark.  79;  West.  U.  Tel.  Co.  v.  Cobbs.  24  So.  535. 

47  Ark.  344,  1  S.  W.  558,  58  Am.  Rep.  ■="  West.  U.  Tel.  Co.  v.  Lindley,  S9  Ga. 

75G;  West.  U.  Tel.  Co.  v.  Pendleton,  95  484.    15   S.   E.   636;    West.   U.  Tel.   Co. 

Ind.    12,   48   Am.   Rep.    098;    West.   U.  v.   Pendleton,  95  Ind.   12,  48  Am.  Rep. 

Tel.  Co.  V.  Adams,  87  Ind.  598,  48  Am.  (192 :   Hadley  v.  West.  U.  Tel.  Co.,  115 

Rep.  776;   West.  U.  Tel.  Co.  v.  Fergu-  Ind.    191;    Carnalian   v.   West.    U.   Tel. 

son.  157  Ind.  37;   West.  U.  Tel.  Co.  v.  Co.,    89    Ind.    526,    46    Am.    Rep.    175; 

Allen.  C6  Miss.  549,  6  So.  461 ;  Jacobs  Wilkins  v.  West.  U.  Tel.  Co.,  68  Miss. 

(i.   S   So.     678.     See     also  Stafford     v. 

T    &  T— 39  ^^^'**-   ^-  ^'^^-  ^°'  "^  ^^^-  ^^^' 


610  TELEGKAPII  AND   TELEPHONE   COMPANIES.  \_^    633 

One  is  criminal  in  nature  bnt  civil  in  form,  and  the  other  is  civil 
both  in  nature  and  in  form.  Thej,  being  founded  on  different 
grounds,  may  be  instituted  separately ;  and  an  action  in  one  will 
not  bar  an  action  in  the  other.  While  these  two  actions  are  sep- 
arate and  distinct  and  are  based  on  different  grounds,  yet  the  same 
act  of  the  company  may  be  the  cause  of  both  of  the  actions. 
For  instance,  if  the  statute  provides  that  on  failure  to  prompt- 
ly deliver  a  message  the  company  will  be  liable  for  a  certain 
penalty,  under  this,  if  the  company  has  failed  to  discharge  its  duty, 
it  will  be  liable  for  the  penalty;  and  if  the  plaintiff  has  sus- 
tained a  loss  in  consequence  of  such  delay,  he  may  also  recover  the 
actual  loss  sustained  thereby.  As  will  be  seen,  the  delay,  in  this  in- 
stance, is  the  cause  of  both  actions,  but  one  is  founded  upon  the  statu- 
tory remedy  for  the  enforcement  of  its  duty  with  respect  to  the 
promptness  as  to  time  in  the  delivery  and  the  other  is  founded  on  the 
fact  of  its  violating  its  common-law  duties  or  obligations  and  those 
assumed  when  the  rights  and  benefits  of  a  corporation  were  acquired. 
In  some  jurisdictions  it  is  held  that  an  action  for  the  recovery  of  the 
penalty  and  a  suit  to  recover  the  damages  sustained  as  a  consequence 
of  such  act,  may  be  asserted  in  one  suit.^^  It  has  been  held  that, 
under  these  statutes,  parties  who  have  sigTied  a  dispatch  jointly  may 
bring  a  joint  suit  to  recover,  the  penalty  for  a  failure  to  transmit  the 
same.^^ 

§  634.     Actions  survive. 

In  actions  brought  to  recover  the  statutory  penalty,  the  recovery  is 
not  based  upon  any  injuiy  to  the  person  of  the  plaintiff.  It  is  an  ac- 
tion to  enforce  a  right  created  by  statute  and  does  not  belong  to  the 
class  of  actions  where  redress  is  sought  for  a  personal  injury.  As  is 
known,  all  actions  for  personal  injuries  die  with  the  person,  unless 
the  rule  is  otherwise  changed  by  statute.  In  these  cases,  brought  for 
the  recovery  of  the  statutory  penalty,  the  right  of  action  does  not  die 
with  the  person  injured  by  such  act  of  the  company,    but   survive.^'"' 

"West.  U.  Tel.  Co.  v.  MoLaurin,  70  =nYest.  U.  Tol.  Co.  v.  HnflF,  3  West. 

Miss.  26,  13  So.  30;   West.  U.  Tel.  Co.      Rep.   (Ind.)   376. 

V.   McCorniick,  27   So.    (Miss.)    606.  '=■  West.  U.  Tel.  Co.  v.  Scircle,  10  Am 

&  En^'.   Corp.   Cas.    (Ind.)    010. 


<^    635]  STATUTORY   PENALTY.  611 

Under  the  common-law  practice,  the  remedy  in  such  cases  as  these 
would  be  an  action  of  debt.^''  There  may  be  statutes,  however,  which 
provide  that  these  actions  shall  not  survive ;  when  this  is  the  case,  of 
course,  there  can  be  no  recovery  after  the  death  of  the  person  in- 
jured by  the  act  of  the  company. 

§  635.     Connecting  line — liable. 

As  it  has  been  seen  at  other  places,  it  is  the  duty  of  the  connecting 
line  to  receive  all  messages  which  may  be  tendered  it  by  an  initial 
line.  The  same  care  and  diligence  must  be  exercised  by  this  line  as 
is  imposed  on  the  first  line,  and  any  damages  arising  as  a  result  of 
the  company's  failure  to  properly  discharge  these  duties,  will  sub- 
ject it  to  liability  therefor.  These  statutes  which  place  a  penalty  on 
telegraph  companies  for  a  failure  to  perform  properly  the  duties 
which  they  owe  to  the  public,  apply  to  all  telegraph  companies  doing 
a  public  business,  and  it  matters  not  wdth  whom  they  do  business.  As 
said,  they  may  either  transact  business  with  respect  to  the  transmis- 
sion of  news,  cither  with  a  private  person,  or  with  another  company. 
It  is  not  only  a  privilege,  but  it  is  a  duty  for  them  to  transact  such 
business,  where  the  messages  are  such  as  may  be  sent  without  sub- 
jecting them  to  an  action.  So,  it  has  been  held  that  these  statutory 
penalties  may  be  enforced  against  connecting  telegraph  lines  where 
the  initial  company  would  be  liable  for  the  same  act.^^  The  claim 
by  the  connecting  line  that  it  acted  merely  as  the  agent  for  the  first 
company,  is  no  defense  to  an  action  to  recover  the  penalty.^''  But  in 
such  cases,  if  the  statute  provides  that  the  sender  shall  maintain  the 
suit,  it  seems  that  the  initial  line  must  be  the  party  to  recover  the 
penalty;^'''  in  other  words,  the  original  sender  of  the  message  cannot 
recover  the  penalty  from  the  connecting  line.^^  But  if  the  statute 
provides  that  the  penalty  may  be  recovered  either  by  the  sender  or 

"1     Chitt.  PI.   125;     Corporation  v.  ''"  Conyers  v.    Postal   Tel.   Cable   Co., 

Eaton,  4  Cranch.     C.  0.  352;      United  02   Ga.   619,   44   Am.    St.   Rep.    100.    19 

States  V.  Co]t,   1   Pet.   C.  C.   145;   Bo-  S.  E.  253. 

gart  V.  City,  1  Ind.  38.  "'  United  States  Tel.  Co.  v.  West.  U. 

'"'United  States  Tel.  Co.  v.  West.  U.  Tel.  Co.,  56  Barb.  (N.  Y.)  46. 

Tel.  Co.,  56  Barb.    (X.  Y.)    46;  People  «Tum  v.  Alta  Tel.  Co.,  15  Cal.  473. 
V.  West.  U.  Tel.  Co.,  1G6  111.  15,  36  L. 
R.  A.  637. 


612  TELEGRAPH  AXD  TELEPHO^^E   COMPAXIES.  [<§>    635 

the  addressee,  the  hitter  may  maintain  a  suit  to  recover  same.^^  The 
various  statutes  enacted  in  the  several  states  are  so  different  in  word- 
ing that  each  should  be  referred  to  in  order  that  the  proper  construc- 
tion may  be  placed  on  each. 

§  636.     Defenses — office  hours. 

Telegraph  companies  may  set  up  the  same  defenses  in  actions 
brought  to  recover  the  statutory  penalty  as  are  available  in  ordinary 
actions  to  recover  damages  resulting  from  their  negligence. ^"^  It  has 
been  seen  that  they  may  regulate  their  office  hours  and  provide  that 
all  messages  shall  be  tendered  for  transmission  within  such  hours, 
both  at  the  receiving  and  terminal  offices.  As  a  result  of  such  regu- 
lations, they  are  not  liable  to  deliver  the  message  immediately  on  its 
receipt  if  the  terminal  office  should  be  closed ;  it  would  only  be  liable 
for  such  delay  when  the  message  was  transmitted  during  the  office 
hours  of  both  the  receiving  and  tenninal  offices.  The  same  rule  ap- 
plies notwithstanding  the  fact  that  the  action  was  brought  to  recover 
the  statutory  penalty.  For  the  reason  that  one  is  maintainable  un- 
der a  common-law  remedy  and  the  other  under  a  statutory  remedy  in 
which  a  penalty  is  imposed  on  the  wrongdoer,  does  not  change  the 
rule  that  the  same  defense  is  available  under  each  case.  When  the 
action  is  brought  under  the  same  statute,  that  is,  one  providing  for  a 
penalty  when  the  message  is  not  promptly  transmitted,  it  may  be 
shown  that  the  delay  was  caused  by  a  derangement  of  its  lines  du^ 
to  an  unavoidable  casualty  and  that  the  message  was  sent  within  a 
reasonable  time  after  the  difficulty  was  removed. 

§  637.     Same  continued — free  delivery  limits. 

Another  regulation  of  telegraph  companies  is,  that  they  will  de- 
liver all  messages  within  a  certain  radius  of  the  terminal  office  free 
of  any  extra  charge.  It  is  the  duty,  as  has  been  said,  for  them  to 
deliver  all  messages  within  a  reasonable  distance  from  their  central 
offices,  but  they  may  prescribe  the  distance,  provided  it  be  reasonable. 

"Conyers  v.   Postal  Tel.     Cablo  Co.,  ^^West.  U.  Tel.  Co.  v.  Harding,  103 

tt2  Ga.  619.  19  S.  E.  256,  44  Am.  St.  Jnd.  505;  Given  v.  West.  U.  Tel.  Co., 
Eep.   100.  24  Fed.  119. 


<^    638]  STATUTOKY    PENALTY.  613 

This  being  a  reasonable  regulation  for  these  companies  to  enforce,  it 
does  not  become  their  duty  to  deliver  a  message  beyond  the  free-de- 
livery limit,  unless  it  has  become  additionally  compensated  for  such 
services.  If  they  should  fail  to  make  such  delivery,  they  ^vould  not 
be  liable  for  any  damages  resulting  from  the  failure  to  deliver  same. 
There  are  some  statutes  which  provide  that,  on  failure  to  deliver  a 
message,  or  where  it  has  been  unreasonably  delayed  in  delivery,  a 
penalty  may  be  recovered.  In  an  action  to  recover  this  penalty,  the 
defense  that  the  addressee  resides  beyond  the  free-delivery  limit, 
may  be  set  up  as  a  good  defense  for  not  delivering  the  message.''^ 

§  638.     Same   continued — not  under  operation  of   statute — contri- 
butory negligence. 

It  is  hardly  necessary  to  enter  into  any  lengthy  discussion  of  the 
available  defenses  in  actions  brought  to  recover  the  statutory  penalty 
imposed  on  these  companies  for  failing  to  discharge  their  public  du- 
ties, since  the  same  defense  may  be  used  in  these  cases  as  may  be  set 
up  in  ordinaiy  actions  brought  to  recover  damages  for  some  negligent 
act,  and  which  have  been  discussed  heretofore.  But  having  entered 
into  the  subject,  we  shall  say  a  few  things  about  each  defense.  As 
has  been  said,  the  cause  of  the  action  must  be  one  covered  by  the 
statute ;  and  should  the  action  not  be  covered  by  such  statute,  or  if 
the  proof  fails  to  sustain  an  action  which  is  brought  thereunder,  this 
may  be  used  as  a  defense  in  an  action  to  recover  the  penalty.  Penal- 
ties are  not  given  as  a  matter  of  favor,  and  one  who  claims  a  penalty 
must  bring  himself  fully  and  clearly  within  the  law.  The  plaintiff 
in  the  case  must  not  be  guilty  of  any  act  which  contributed  directly 
to  the  cause  of  complaint,  and  if  the  company  should  show  that  he 
was  gnilty  of  contributory  negligence,  the  penalty  cannot  be  recov- 
ered. Thus,  where  the  action  is  brought  under  a  statute  which  pro- 
vides for  the  recovery  of  a  penalty  in  case  a  message  is  not  promptly 
delivered,  it  may  be  shown  as  a  defense  that  the  plaintiff  failed  to 
give  the  proper  address,^-  or  that  he  failed  to  give  the   Christian 

'MYest.  U.  Tel.     Co.  v.  Lindley,     62  ~West.    U.    Tel.    Co.   v.    Patrick,    92 

Ind.  371.  See  also  Horn  v.  West.  U.  Ga.  GOT,  90  Am.  St.  Rep.  90,  IS  S.  E. 
Tel.  Co..  88  Ga.  538,  15  S.  E.  16.  980. 


61i  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  [^    638 

name,  street,  and  number  of  the  sendee  in  a  city  of   12,000    inhabi- 
tants.^^ 

§  639.     Same  continued — harmless  errors. 

^Vhel•e  the  error  made  in  transmission  is  harmless  and  is  due  to 
mere  inadvertence  the  penalty  cannot  be  recovered.'''*  Thus,  under 
the  jMississippi  statute,  the  penalty  is  recoverable  where  there  is  a 
failure  to  "transmit  correctly,"  yet  it  has  been  held  that  if  there  is 
no  hann  caused  by  the  error,  the  penalty  cannot  be  recovered.  As 
was  said  by  Judge  Campbell,  while  rendering  an  opinion  on  this 
point:  ''Can  it  be  supposed  that  for  changing  my  signature  or  ad- 
dress from  Campbell  to  Camel,  or  Campel  or  Cambelle,  or  Camwell, 
according  to  the  form  of  writing  it  sometimes  meets  with,  in  a  mes- 
sage sent  by  me  or  to  me  and  promptly  delivered,  and  accomplishing 
its  purpose,  and  doing  no  harm,  the  penalty  would  be  incurred  ?  To 
so  hold  would  impute  to  the  legislature  a  spirit  of  injustice  and 
cruelty  that  would  seriously  reflect  on  its  attempt  to  legislate  in  this 
matter  for  the  public  interest.  To  limit  the  operation  of  the  section 
as  we  do,  is  to  secure  all  by  it  that  will  subserve  the  interest  of  the 
public,  which  is  the  object  of  the  law."  ^^ 

§  640.     Same  continued — Sunday  dispatches. 

It  is  held,  in  the  Indiana  and  Missouri  courts,  that  the  penalty 
cannot  be  recovered  by  one  who  delivers  his  message  for  transmission 
on  Sunday.  In  so  holding,  the  court  in  one  case,  said :  "A  penalty 
cannot  be  recovered  for  failure  to  perform  an  illegal  contract.  The 
statute  does  not  apply  to  contracts  which  are  without  legal  force 
The  evident  intention  of  the  legislature  was  to  secure  the  perform- 
ance of  such  contracts  as  imposed  binding  obligations  upon  the  tele- 
graj)h  companies.  The  statute  is  a  highly  penal  one,  and  Ave  cannot 
extend  its  operation  by  a  liberal  construction. ''^     We  certainlv  cannot 

8MVest.   U.   Tel.   Co.  v.   McDaniel,   1  West.  U.  Tel.  Co.,  94  Ga.  434,  21  S.  E. 

West.  Rep.    (Ind.)    273.  518. 

«*West.  U.  Tel.  Co.  v.  Clark,  71  Miss.  «=  West.  U.  Tel.  Co.  v.  Clark,  71  Miss. 

157,    14    So.   452.      See   also    West.   U.  157,  14  So.  452. 

Tel.  Co.  V.  Rountree,  92  Ga.  611,  18  S.  «*  West.  U.  Tel.  Co.  v.  Axtell,  69  Ind. 

E.   979,  44   Am.   St.  Rep.   93;   Wolf  v.  191. 


<^    641]  STATUTORY   PENALTY.  615 

bring  within  its  provisions  a  case,  such  as  the  present,  where  there  is, 
in  legal  effect,  no  contract  at  all.  Courts  cannot  declare,  as  a  mat- 
ter of  law,  that  the  business  of  telegraphing  is  a  work  of  necessity. 
There  are,  doubtless,  many  cases  in  which  the  sending  and  delivery 
of  a  message  would  be  a  work  of  necessity  within  the  meaning  of  our 
statute.  But  we  cannot  judicially  say  that  all  contracts  for  trans- 
mission of  telegraphic  messages  are  to  be  deemed  within  the  statutory 
exception.  Whether  the  contract  is  within  the  exception  must  be  de- 
termined, as  a  question  of  fact,  from  the  evidence  in  each  particular 
case."  ^"^  A  different  ruling  obtains  in  Mississippi,  where  it  was 
held  that  the  penalty  could  be  recovered,  although  the  message  was 
delivered  on  Sunday  for  transmission,  regardless  of  the  fact  of  its 
being  or  not  being  about  a  matter  of  necessity,  within  the  exception 
of  the  Sunday  law.*'^ 

§  641.     Stipulations — time  for  presenting  claim — effect  of. 

Telegraph  companies  may  adopt  and  enforce  stipulations  wherein 
it  is  provided  that  all  claims  must  be  presented  within  a  certain 
time,  otherwise  the  plaintiff  will  be  barred  from  recovery.  The  rea- 
son for  this  rule  has  already  been  discussed.  Where  the  language  of 
these  stipulations  make  them  applicable  to  actions  for  penalties,  it 
is  as  effective  in  such  actions  as  for  the  recovery  of  damages,^^  and 
the  same  reasons  why  they  should  be  enforced  with  respect  to  the  re- 
covery of  damages  are  applicable  for  the  recovery  of  the  statutory 
penalty.  It  has  been  held,  with  few  exceptions,  that  a  stipulation  re- 
quiring "all  claims  for  damages"  to  be  presented  within  a  certain 
time  embraces  a  claim  for  the  penalty."^^  Judge  Elliotte,  in  an  opin- 
ion on  this  point,  said:  "We  think  that  in  order  to  carry  into  effect 
the  evident  intention  of  the  parties,  and  to  give  the  clause  the  mean- 
er ij  U.  Tel.  Co.,  42  Mo.  App.  546 ;  Kirby  v. 
"SMcLaiirin  v.  West.  U.  Tel.  Co.,  70  West.  U.  Tel.  Co.,  7  S.  Dak.  G23;  West. 
Miss.  26,  13  So.  36.  U.   Tel.   Co.  v.   Powell,   94  Va.   268,  26 

«»West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.      S.  E.  S2S. 
248;    West.   U.   Tel.   Co.   v.      Jones,   95  '"West.  U.  Tel.  Co.  v.  Jones,  95  Ind. 

Ind.  228,  48  Am.  Rep.  713;  Albers  v.  228,  48  Am.  Rep.  713.  Compare  West. 
West.  U.  Tel.  Co.,  98  Iowa  51,  66  N.  U.  Tel.  Co.  v.  Cobbs,  47  Ark.  344,  58 
W.  1040 ;  INIontgomery  v.  West.  U.  Tel.  Am.  Rep.  756.  See  also  West.  U.  Tel. 
Co.,  56  Mo.  App.  192;  Barrett  v.  West.      Co.  v.  James,  90  Ga.  254,  16  S.  E.  83. 


616  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [<^    641 

ing  which  the  context  shows  it  should  have,  it  must  be  held  that  all 
claims  which  will  confer  a  right  to  a  recovery  in  money  for  a  breach 
of  contract  or  of  duty,  must  be  presented  within  sixty  days.  In  a 
broad  sense  the  w^ord  'damages'  means  that  which  is  assessed  in  the 
plaintiff's  favor  as  the  amount  of  his  recovery,  and  that  statutory 
penalty  is  in  this  sense  'damages.'  ""^  The  correctness  of  this  holding 
has  been  denied  in  other  cases.'''^  In  Georgia,  these  stipulations  arc 
held  void  so  far  as  they  apply  to  the  claim  for  the  statutory  penalty.'^^ 
After  giving  considerable  studj^  to  the  subject,  we  have  arrived  at  the 
conclusion  that  the  proper  view  in  which  the  matter  should  be  con- 
sidered is,  that  where  these  stipulations  provide  that  all  claims  for 
damages  shall  be  presented  within  a  certain  time,  they  embrace 
claims  for  statutory  penalties  as  well  as  claims  for  actual  damages 
sustained. 

§  642.     Accord  and  satisfaction. 

It  is  a  general  rule  that  where  there  is  an  agreement  to  satisfy  all 
claims  which  may  be  pending  and  an  execution  of  such  agreement, 
this  fact  will  bar  all  actions  afterward  brought  to  recover  such  claims, 
unless  there  was  fraud  of  some  kind  perpetrated.  The  agreement 
must  be  made  in  good  faith  and  cover  all  the  claims  demanded,  and 
the  same  must  be  satisfied  according  to  the  agreement.  As  has  been 
said,  the  penalty  provided  for  in  these  statutes  is  not  an  award  of 
liquidated  damages,  but  is  a  punishment  imposed  on  these  companies 
for  a  violation  of  some  of  the  duties  which  they  owe  to  the  public  gen- 
erally, and  is  recoverable  only  by  the  person  against  whom  the  duties 
are  particularly  violated.  There  can  be  an  accord  and  satisfaction 
executed  in  such  a  manner  as  to  bar  the  plaintiff  from  recovering  the 
penalty.  Thus,  if  the  company  should  voluntarily  tender  or  pay  to 
the  plaintiff  the  price  paid  for  transmission  and  such  damages  as  may 
have  been  sustained  by  the  act  of  the  company,  and  it  also  appears 

"West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  "Mattis  v.  West.  U.  Tel.  Co.,  94  Ga. 

228,  48  Am.  Rep.  713.  338,   21   S.   E.    564,    1039,   47   Am.   St. 

"West.    U.   Tel.     Co.   v.    Cobbs,     47  Rep.    167;    Meadows   v.    West.   U.   Tel. 

Ark.   344,   1    S.   W.   558,   58   Am.   Rep.  Co.,  96  Ga.  788,  22  S.  E.  926. 
756.      See    also    West.    U.    Tel.    Co.    v. 
James,  90  Ga.  254,  16  S.  E.  83. 


§    644]  STATUTORY    PENALTY.  617 

that  these  payments  were  made  in  full  settlement  for  all  claims  which 
he  may  have  had  against  the  company,  he  will  be  barred  from  after- 
ward recovering  the  statutory  penalty.  But  unless  the  fact  appears 
that  the  voluntary  payment  of  the  damages  which  may  have  been  sus- 
tained, and  the  price  for  transmission,  were  paid  by  way  of  accord 
and  satisfaction,  he  will  not  be  barred  in  afterward  recovering  the 
penalty."^"* 

§  643.     Prepayment  of  charges. 

Some  of  the  statutes  which  impose  a  penalty  for  the  violation  of 
these  companies'  duties,  expressly  state  that  the  charges  for  trans- 
mission of  the  messages  must  be  prepayed ;  when  this  is  the  case  there 
can  be  no  recovery  of  the  penalty  when  it  is  shown  that  the  charges 
have  not  been  paid."^  If  the  message  was  sent  without  charges  be- 
cause of  the  sender's  connection  with  the  company,  or  for  other  rea- 
sons, the  penalty  is  not  recoverable,  although  the  message  -was  marked 
'•prepaid."  '"  Where  the  sender  tenders  the  amount  of  the  charges 
and  then  withdraws  them,  observing  that  the  addressee  ought  to  pay 
the  charges,  the  tender  amounts  to  nothing  and  the  penalty  is  not  re- 
coverable.'^^ But  if  the  message  is  paid  for,  the  fact  that  the  operator 
returns  the  money  to  the  person  paying  and  substitutes  a  free  or  a 
"collect"  message  for  the  prepaid  one  without  the  sender's  knowledge, 
the  company  will  be  liable  for  the  penalty.'^ ^ 

§  644.     Repeal  of  statute — effect  of. 

The  general  rule  is  that  the  repeal  of  a  statute  prescribing  a  pen- 
alty in  a  civil  action  takes  away  the  right  of  recovery ,'^^  whether  an 

"West.  U.  Tel.  Co.  v.  Taylor,  84  Ga.  '^This  is  under  tiie  Georgia  statute: 

419,  8  L.  R.  A.  189;  West.'u.  Tel.  Co.  West.  U.  Tel.  Co.  v.  Eyels,  94  Ga.  336, 

V.  Moss,  93  Ga.  494,  21  S.  E.  63;  West.  21  S.  E.  573. 

U.  Tel.  Co.  V.   Brightwell,  94  Ga.  434.  "West.  U.  Tel.  Co.  v.  Power,  93  Ga. 

21  S.  E.  518;  West.  U.  Tel.  Co.  v.  Buch-  543,  21  S.  E.  51. 

anan,  35  Ind.  429,  9  Am.  Rep.  744.  "West.  U.  Tel.   Co.  v.  :\Io3s.  93  Ga. 

"West.    U.    Tel.    Co.    v.    jMossler,    95  494,  21   S.   E.   63. 

Ind.  32;  West.  U.  Tel.  Co.  v.  Ferguson,  ■»  Pope  v.  Lewis.  4  Ala.  487;  Victory 

57   Ind.  495;   Longby  v.   West.  U.  Tel.  Webb  Printing  Co.  v.  Bucher,  26  Hun 

Co.,  88  Ga.  777.  15  S.  E.  291;  Wood  v.  (N.  Y.)   48;  Wood  v.  Kennedy,  19  Ind. 

West.  U.   Tel.   Co..   59   Mo.   App.   236.  08;  Hunt  v.  Jennings,  5  Blackf.   (Ind.) 


618  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  [<§,    644 

action  has  been  begun  ^^  or  not;^^  since  tbere  is  no  vested  right  in 
the  penalty  entitling  its  actual  recovery  by  final  judgment.^"  The 
same  rule  applies  to  statutes  which  impose  a  penalty  on  telegraph 
companies  for  failing  to  perform  the  duties  which  they  owe  to  the 
public ;  ^^  but,  in  Indiana,  the  right  to  recover  an  accrued  penalty  for 
the  delaying  of  a  telegram  is  by  special  provision  of  the  statute  saved 
to  the  person  injured  by  the  delay,  notwithstanding  the  repeal  of  the 
statute  prescribing  it.^*  In  some  cases,  where  the  right  to  recover  a 
penalty  is  destroyed  by  the  repeal  of  the  statute  giving  it,  there  may 
still  be  a  recovery  for  the  violation  of  the  statute  on  common-law 
grounds.  Thus,  where  a  statute  prohibits  an  act,  and  a  violation  of 
its  provisions  is  such  an  act  of  negligence  as,  on  common-law  princi- 
ples, subjects  the  offender  to  a  civil  action  for  damages  on  account  of 
the  loss  or  injury  thereby  caused,  the  repeal  of  the  statute,  while  it 
destroys  the  right  to  recover  the  penalty,  does  not  take  way  or  impair 
a  right  of  action  which  has  already  accrued  by  reason  of  such  negli- 
gence.^^ Applying  this  rule  to  those  statutes  which  we  have  been  dis- 
cussing, the  repeal  of  the  statute  will  not  impair  the  right  to  recover 
the  actual  damages  sustained  by  reason  of  the  negligent  act  of  the 
company. 

195,  33  Am.  Dec.  465;  Welsh  v.  Wads-  ^^  Com.  v.  Welsh,  2  Dana.(Ky.)    330; 

worth,  30  Conn.  149,  79  Am.  Dec.  239;  Bank  v.  State,  1  Sten.    (Ala.)   347. 

Gregory  v.  German  Bank,  3  Colo.  332,  '^Hadley  v.  West.  U.  Tel.  Co.,  21  Am. 

25  Am.  Rep.   760;   Musgrove  v.   Vicks-  &  Eng.  Corp.  Cas.   (Ind.)   72. 

burg,  etc.,  R.  Co.,  50  Miss.  677.  '^West.  U.  Tel.  Co.  v.  Brown,  14  Am. 

^'Bay  City,  etc.,  R.  Co.  v.  Austin,  21  &  Eng.  Corp.  Cas.    (Ind.)    139. 

Mich.   390;    Van   Dyck  v.   McQuad.   86  ^  Gmj  v.  Mobile  Trade  Co.,  55  Ala. 

N.  Y.  38;  Road  v.  Chicago,  etc.,  R.  Co.,  387,  28  Am.  Rep.  729;   German  v.  Mc- 

43  Wis.  147.  Ardle,   67   Hun    (N.   Y.)    484;    Vander- 

"Comm.  V.  Standard  Oil  Co.,  101  Pa.  kar  v.  Rensselaer,  etc.,  R.  Co.,  13  Barb. 

St.   119;   Smith  v.  Banker,  3  How.  Pr.  (N.  Y.)   393. 
(N.  Y.)    141. 


CHAPTER  XXVII. 

TAXATION. 

§  645.  Introduction. 

646.  Power  of  state  to  tax. 

647.  How  assessments  may  be  made. 

648.  Methods  of  taxation. 

649.  Classification — discretion  of  legislature. 

650.  The  same  must  be  paid  when  properly  assessed. 

651.  Discrimination. 

652.  Lien  of  assessment. 

653.  Interstate  commerce — obstruction  of. 

654.  Property  of  telegraph  and  telephone  companies  used  in  In- 

terstate commerce — subject  to  state  taxes. 

655.  Taxation  on  capital  stock  in  proportion  to  length  of  line  in 

state. 

656.  Mileage  basis  of  valuation. 

657.  Assessment  of  telegraph  lines  for  taxation — New  York  state. 

658.  License  tax — cannot  be  imposed. 

659.  Distinction  between  property  tax  and  privilege  tax. 

660.  Excise  tax. 

661.  Taxation  on  gross  receipts — interstate  business. 

662.  Same  on  message. 

663.  Municipal  tax — compensation — use  of  streets. 

664.  City  license  tax  on  telegraph  companies. 

665.  Special  franchise  taxes. 

666.  Where  rights  of  being  a  corporation  are  derived  from  the 

United  States. 

667.  Interest  when  payment  of  taxes  is  delayed. 

668.  Taxes  of  telephone  companies. 

§  645.     Introduction. 

We  propose  to  discuss,  in  this  chapter,  the  right  to  tax  telegraph 
and  telephone  companies;  and,  in  treating  the  subject,  we  shall  dis- 
cuss the  rights  of  the  several  states  to  make  such  imposition,  then 
the  rights  as  derived  imder  the  federal  constitution.  These  rights 
might  be  more  appropriately  discussed  under  two  separate  chapters: 
but  as  the  subject  of  taxation  has  been  more  thoroughly  discussed  in 
a  general  way  by  more  able  text-AATiters,  we  shall  be  brief  in  our  treat- 
ment of  the  subject — applying  the  law  thereunder,  particularly  to 
telegraph  and  telephone  companies — and  embrace  the  entire  subject 

(619) 


620  TELEGB^iPH  AXD  TELEPHONE   COMPANIES.  ["^    645 

under  one  chapter.  Telegraph  and  telephone  companies  occupy  the 
same  relation  to  commerce  as  a  carrier  of  messages,  that  a  railroad 
company  does  as  a  carrier  of  goods ;  ^  and  while  the  nature  of  the 
business  of  these  companies  is  quite  different,  yet  the  relation  which 
each  bears  toward  commerce  is  the  same,  and  the  law  with  respect  to 
taxation  is  applicable  to  both.  The  cases  against  telegraph  and  tele- 
phone companies,  with  respect  to  taxation,  are  not  so  numerous  as 
those  which  have  been  maintained  against  common  carriers  of  goods ; 
and  for  this  reason,  we  shall,  in  many  instances,  refer  the  reader  to 
such  as  may  have  been  brought  against  the  latter  companies,  where 
the  same  questions  are  involved. 

§  646.     Power  of  state  to  tax. 

It  is  a  sovereign  power  of  the  state  to  tax  property  of  every  de- 
scription belonging  to  telegTaph  and  telephone  companies,  and  over 
purely  domestic  or  interstate  telegraph  and  telephone  companies  the 
power  of  the  state  is  supreme ;  -  but  over  those  engaged  in  interstate 
commerce,  the  power  of  the  state  is  necessarily  abridged  by  the  com- 
merce clause  of  the  federal  constitution.  The  property  of  these  cam- 
panies  engaged  in  interstate  commerce,  which  is  not  used  in  its  busi- 
ness of  conducting  commerce  between  the  states,  is,  of  course,  subject 
to  taxation  by  the  state  to  the  same  extent  and  in  the  same  manner  as 
the  same  property  of  natural  persons  or  other  corporations.^  For  in- 
stance, if  these  companies  are  the  owners  of  real  property — such  as 
houses  and  lots — which  is  not  used  in  connection  with  their  business 
as  a  carrier  of  interstate  messages,  this  property  is  subject  to  state 
taxation  to  the  same  extent  as  if  it  belonged  to  an  individual,  and  the 
power  to  tax  is  not  affected  by  the  clause  in  the  federal  constitution. 
So  it  is  seen  that  the  federal  constitution  exerts  a  very  important  in- 
fluence upon  the  subject  of  taxation,  and  for  this  reason  we  shall  at- 

'  West.  U.  Tel.  Co.  v.  Texas,  105  U.  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S. 

S.  460;  Pensacola  Tel.  Co.  v.  West.  U.  460;    Postal  Tel.  Cable  Co.  v.  Adams, 

Tel.  Co.,  96  U.  S.  1;  Postal  Tel.  Co.  v.  71  Miss.  555,  42  Am.  St.  Rep.  483,   14 

Puchmond,  99  Va.  102,  37  S.  E.  789,  86  So.  36. 
Am.  St.  Rep.  881.  ^  Leloup   v.   Port   of   Mobile,    127    U. 

-  West.  U.  Tel.  Co.  v.  Massachusetts,  S.  640,  8  S.  Ct.  Rep.  1380. 
145   U.   S.   530,   12     S.   Ct.   Rep.     856; 


<§    648]  TAXATION.  621 

tempt  to  discuss  the  subject  separately,  and  take  up,  first,  the  power 
of  the  state  to  tax. 

§  647.     How  assessments  may  be  made. 

The  legislature  of  the  state,  except  where  it  is  limited  by  the  con- 
stitution, is  invested  with  the  supreme  power  over  the  subject  of  tax- 
ation. The  taxes  are  levied  by  the  legislature,  and  the  mode  of  as- 
sessing property  must  be  prescribed  by  statute."*  The  best  method 
of  taxing  the  property  of  telegraph  and  telephone  companies,  where 
it  forms  a  part  of  its  lines,  is  to  regard  it  as  a  unit  and  assess  the 
property  as  an  entity,  since  any  other  method  would  divide  or  cut  up 
the  property  into  fragmentary  parts  and  lead  to  confusion  and  injus- 
tice. Some  of  the  courts  have  held  that  this  is  the  only  method  which 
can  be  exercised  by  the  legislature  f  but  it  seems  that  where  the  legis- 
lature is  not  restricted  by  constitutional  provisions,  it  ought  to  be 
the  sole  judge  of  the  method  which  should  be  pursued  in  such  mat- 
ters.^ 

§  648.     Methods  of  taxation. 

The  four  principal  methods  of  taxation  are:  (1)  on  the  capital 
stock;  (2)  on  the  corporate  property;  (3)  on  the  franchise;  (4)  on 
the  business  done  by  the  corporation."  As  was  said,  the  legislature 
has  the  power  to  levy  taxes  and  prescribe  the  method  by  which  the 

*  Wisconsin  Cent.  R.  v.  Taylor  Co.,  52  '  Worth  v.  Wilmington,  etc.,  Co.,  89 

Wis.  37,  8  X.  W\  883;  State  v.  Central  N.  C.  291,  45  Am.  Rep.  679;   City  of 

etc.,    Co.,   21    Nev.     260,   30   Pac.    G89:  New  Orleans  v.  Kaufman,  29  La.  Ann. 

North   Missouri,   etc.,   Co.   v.    Mag\ure.  283.  29  Am.  Rep.  328:   Pittsburg,  etc.. 

102   U.   S.   472;    Cooly   Court.   Lim.    (5  R.   Co.    v.    State,   49    Ohio   St.    189,   16 

Ed.)    637;    :Meriwether  v.   Garrett,   102  L.  R.  A.  380,  30  N.  E.  435;   West.  U. 

U.  S.  472.  Tel.    Co.   v.   Massachusetts,    125   U.    S. 

^Applegate  v.  Erust,  3  Bush  648,  96  530,     8     S.     Ct.     Rep.     961,     33     Fed. 

Am.  Dec.  272.     See,  also,     Graham     v.  129;     Union     Pac.     R.     Co.     v.     Pen- 

Mt.    Sterling   Coal    Co.,    14   Bush    425;  iston,    18   Wall    (U.   S.)    5;    Thompson 

Franklin  Co.  v.  Xashville,  etc.,  Co.,  12  v.   Pac.  R.  Co.,  9  Wall.    (U.  S.)    579: 

Lea  521.  West.  U.  Tel.  Co.  v.  Lieb,  76  111.  172. 

•Wilson  V.  Weber,  96  111.  454;  State  See  also  Postal  Tel.   Cable  Co.   v.  Bar- 

V.  I.  C.  R.  Co.,  27  111.  64,  79  Am.  Dec.  wood,  37  111.  App.  105. 
396;    Sanganiore,   etc..   Co.   v.   Morgan, 
14  111.   163.  56  Am.  Dec.  497. 


622  TELEGKAPH  AKD  TELEPHOXE   COMPANIES.  [<^    648 

assessments  shall  be  made.  Tliis  power  is  supreme  so  far  as  the 
property  subject  to  taxation  is  exclusivelv  within  the  control  of  the 
jurisdiction  of  the  states;  and  where  a  method  is  prescribed  by  stat- 
ute for  the  assessment  of  the  taxes,  none  other  can  be  pursued.^  While 
the  courts  may  declare  a  statute  invalid  where  it  conflicts  with  the 
constitution,  they  cannot  supervise  or  control  legislative  discretion, 
nor  can  they  dictate  the  policy  to  be  pursued.^ 

§  649.     Classification — discretion  of  legislature.   • 

The  discretionary  powers  of  the  legislature  are  very  broad  and 
comprehensive,  and  no  matter  how  unjustly  they  may  be  exercised, 
the  courts  cannot,  so  long  as  the  constitutional  powers  are  not  trans- 
cended, interfere  with  them.  The  question  always  is  as  to  whether 
it  has  these  powers ;  and  if  it  be  clear  that  the  same  may  be  exercised, 
the  courts  cannot  alter,  amend  or  annul  the  statute;  otherwise  they 
may.  Different  methods  may  be  prescribed,  under  the  legislative  dis- 
cretionary powers,  for  assessing  corporations  of  different  classes,  and 
a  statute  which  provides  different  methods  for  this  purpose,  cannot  be 
successfully  assailed  upon  the  ground  that  it  provides  a  method  for 
assessing  telegraph  and  telephone  companies  different  from  that  for 
assessing  other  corporations.^^  Classification  of  different  corpora- 
tions may  be  made,  and  if  these  companies  are  put  in  a  separate  and 
distinct  class  from  others,  a  method  of  assessing  them  may  be  pre- 
scribed different  from  that  prescribed  in  the  assessment  of  other  cor- 
porations of  a  different  class.  But  if  the  constitution  provides  that 
taxes  shall  be  equal  and  uniform,  the  mode  of  assessing  these  com- 
panies must  be  uniform ;  that  is,  one  company  of  the  same  class  and 
character  cannot  be  assessed  differently  from  another  of  precisely  the 
same  class  and  character.  ^^ 

*  Louisville,  etc.,  Co.  v.  Warren  Coun-  374 ;    Kentucky   Railroad  Tax   Cas.   92 

ty,  5  Bush    243.  U.  S.  6G3;  Missouri,  etc.,  Co.  v.  Mack- 

"  Legal   Tender  Cases,    12   Wall   457;  oy,  127  U.  S.  205,  8  S.  Ct.  Rep.  1161; 

State  V.  Hayworth,  122  Ind.  462,  7  L.  West.  U.   Tel.   Co.  v.   Poe,   64   Fed.   9, 

R.  A.  240,  23  N.  E.  946;   City  of  Du-  overruling   West.    U.    Tel.    Co.   v.    Poe, 

buque   v.    Chicago,   etc.,    Co.,    47    Iowa  61  Fed.  449. 

196.  "  Worth  v.  Whittington,  etc.,  Co.,  89 

"St.  Louis,  etc.,  Co.  v.  Worthey,  52  N.  C.    291,    45     Am.    Rep.    679;    New 

Ark.    529,    13    S.   W.   254,   7    L.    R.   A.  Orleans  v.  Kaufman,  29  La.  Ann.  283, 


"^    G51]  TAXATION.  623 

§  650.     The  same  must  be  paid  when  properly  assessed. 

The  taxes  may  be  laid  upon  these  corporations  directly,  and  when 
this  is  the  case,  it  is  upon  the  legal  entity  and  must  be  paid  out  of 
the  revenues  of  said  corporations ;  or  it  may  be  laid  on  the  shares  of 
stock  in  the  hands  of  the  shareliolders  and  not  on  the  corporations 
strictly  speaking.  However,  when  laid  on  either,  it  must  be  paid, 
provided  it  is  authorized  and  enforcible.^-  But  if  the  taxes  are  laid 
on  the  corporation  and  not  on  the  shares,  a  failure  of  payment  will 
be  a  breach  of  duty  of  the  corporation,^^  and,  vice  versa,  if  laid  on 
the  shares  a  failure  to  pay  same  will  be  a  breach  of  duty  of  the  share- 
holders. The  reason  why  this  difference  should  be  considered  is,  that 
there  are  statutes  generally  enacted  providing  for  a  penalty  to  be 
imposed  upon  the  one  guilty  of  a  culpable  breach  of  this  duty,  and 
unless  it  is  kno"\vn  upon  whom  the  taxes  are  laid,  it  could  not  be  as- 
certained as  to  who  should  suffer  the  penalty. 

§  651.     Discrimination. 

Where  the  state  constitution  provides  that  taxes  shall  be  equal  and 
uniform,  no  material  and  unjust  discrimination  can  be  made  against 
the  property  of  telegTaph  and  telephone  companies;^"*  independent 
of  any  federal  rule  or  regiilation.  These  requirements  are  violated 
by  imposing  a  heavier  burden  upon  these  companies  than  that  im- 
posed upon  the  property  of  railroad  companies  or  other  corporations, 
or  that  on  the  property  of  natuarl  persons.  The  word  "person"  in 
our  constitution,  comprehends  corporations;  and  when  it  provides 
that  the  property  of  all  persons  shall  be  equal  and  uniform,  it  is 
meant  by  this  that  the  property  of  corporations  must  be  taxed  equally 
and  uniformly,  not  only  with  respect  to  that  belonging  to  other  cor- 
porations of  the  same  or  different  class,  but  also  with  respect  to  that 
belonging  to  private  persons.     The  burden,  as  we  understand  it,  must 

29   Am.   Rep.    328;    Pittsburg,   etc.,   R.  etc.,  90  Ky.  409,  14  S.  ^Y.  408,  9  L.  R. 

Co.  V.  State,  49  Ohio  St.  189,  30  N.  E.  A.  629n. 

435.  16  L.  R.  A.  380.  "Whittaker  v.  Brooks,  90  Kr.  68,  13 

"Bailey  v.  Atlantic,  etc..  Co.,  3  Dill.  S.  W.  355;  Gallispie  v.  Gaston,  67  Tex. 

22:   Barnsley  v.  St.  Louis,  etc..  R.  Co.,  599,  4  S.  W.  248. 

3  Dill.   13;    Greenwood  v.  Freight  Co.,  "Chicago,  etc.,  Co.  v.  Board,  54  Kan. 

105  U.  S.   13;   Louisville  v.  Louisville,  781,  39  Pac.  1039. 


624  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    651 

be  palpably  and  materially  greater  than  that  imposed  on  other  prop- 
erty, since  in  all  systems  of  taxation  there  is  some  inequality. ^^ 

§  652.     Lien  of  assessment. 

The  statutes  which  provide  the  method  of  assessing  property  gen- 
erally provide  that  the  property  shall  be  subject  to  a  lien  thereon  for 
its  taxes.  The  tax  lien  owes  its  existence  wholly  to  the  statute,  and 
is  not  created  by  implication.  The  extent,  duration  and  the  property 
subject  to  such  lien  must  be  determined  by  the  statute  creating  it.^^ 
These  statutes  generally  provide  that  the  lien  for  taxes  shall  have  a 
priority  over  all  other  claims  against  the  property.  As  it  has  been 
said,  the  property  of  telegraph  and  telephone  companies  may  be  as- 
sessed as  a  unit.  When  this  method  is  prescribed  by  statute,  the 
conclusion  is  that  the  lien  for  taxes  assessed  attaches  to  the  entire 
property.  ^'^  This  fact,  however,  may  be  controlled  by  statutory  pro- 
visions, but  if  there  is  no  other  method  prescribed  by  the  statute,  the 
entire  property  will  be  subject  to  the  lien  for  taxes.  It  must  be  un- 
derstood, however,  that  only  such  property  of  the  company  as  is 
within  the  jurisdiction  of  the  state  is  subject  to  such  lien,  since  the 
provisions  of  any  statute  can  have  no  effect  beyond  the  boundaries  of 
the  state  creating  it. 

§  653.     Interstate  commerce — obstruction  of. 

A  state  unquestionably  has  the  right  to  tax  all  property  over  which 
it  has  jurisdiction  and  which  is  not  used  in  interstate  commerce,  but 
when  it  attempts  to  tax  that  property  used  exclusively  in  carrying 
on  commerce  between  the  states,  an  infringement  of  the  commerce 
clause  of  the  federal  constitution  is  then  made.  While  this  is  the  rule, 
yet  it  is  very  difficult  in  applying  it  to  every  particular  case.  The 
powers  of  the  state  to  tax  property  cannot  be  exercised  so  as  to  ob- 

"  Cumberland   Marine,      etc.,   Co.     v.  '"Maricopa,   etc.,   H.   Co.   v.   Arizona, 

Portland,  37  Me.  444;  New  York,  etc.,  156  U.  S.  347,  15  Sup.  Ct.  R.  391. 

R.  Co.  V.  Sabin,  26  Pa.  St.  242 ;  Osborn  "  Bailey  v.  Feequa,     24  Miss.     497 ; 

V.  New  York,  etc.,  40  Conn.  491;  Han-  Anderson  v.  State,  23  Miss.  459;  Par- 

nibal,    etc.,    Co.    v.    Shocklett,    30    Mo.  ker  v.  Smith,  10  S.  Car.  226;  Tompkins 

5,50.  V.    Little   Rock,   etc.,   R.    Co.,    18   Fed. 

344;  Garrettson  v.  Scofield,  44  Iowa  37. 


§  653] 


TxVXATlOX. 


625 


struct  commorce  between  the  states,  or  to  defeat  or  restrain  the  power 
of  the  federal  Congress  to  regulate  commerce.'^  The  power,  as  may 
have  been  seen,  to  tax  property  used  in  interstate  commerce  is  within 


"  In  the  caso  of  Brown  v.  ;Mai  viand. 
12  Wheat.  419,  Chief  Justice  Marshall, 
speaking  of  the  taxing  power,  said: 
"We  admit  this  power  to  be  sacred,  but 
cannot  admit  that  it  may  be  so  used 
as  to  obstruct  the  free  exercise  of 
power  given  Congress.  We  cannot  ad- 
mit that  it  may  be  used  so  as  to  ob- 
struct or  defeat  the  power  to 
regulate  commerce.  It  has  been  ob- 
served that  the  power  remaining  with 
the  states  may  be  exercised  as  to  come 
in  conflict  with  those  vested  in  Con- 
gress. When  this  happens,  that  which 
is  not  supreme  must  yield  to  that 
which  is  supreme.  This  great  and  uni- 
versal truth  is  inseparable  from  the  na- 
ture of  things,  and  the  constitution 
has  applied  it  to  the  often  interfering 
powers  of  the  general  and  state  gov- 
ernments, as  vital  principles  of  perpet- 
ual operation.  It  results,  necessarily, 
from  this  principle,  that  the  taxing 
power  of  the  state  miist  have  some 
limits."  In  the  State  Freight  Tax  Case, 
15  Wall.  232,  Justice  Wayne  expressed 
the  same  general  doctrine  in  this  lan- 
guage: "While  on  the  other  hand  it  is 
of  the  utmost  importance  that  the 
states  should  possess  the  power  to 
raise  revenue  for  all  the  purposes  of  a 
state  government,  by  any  means  and 
in  the  manner  not  inconsistent  with 
the  powers  which  the  people  of  the 
state  have  conferred  upon  the  general 
government,  it  is  equally  important 
that  the  domain  of  the  latter  should  be 
preserved  from  invasion  and  that  the 
state  legislation  should  be  sustained 
which  defeats  the  avowed  purpose  of 
the  federal  constitution,  or  which  as- 
sumes to  regulate  or  control  subjects 
committed    by    the    constitution    exclu- 


sively to  the  regulation  of  Congress." 
See  also  Osborn  v.  State,  33  Fla.  162, 
25  L.  R.  A.  120,  30  Am.  St.  Rep.  99, 
14  So.  588.  The  fact  that  a  telephone 
company  has  extended  its  line  through 
difl'crent  states  and  is  engaged  in  inter- 
state commerce,  will  not  relieve  it  from 
the  operation  of  state  statute,  upon 
business  conducted  wholly  within  that 
state,  nor  justify  its  refusal  of  a  tel- 
ephone and  the  best  telephonic  connec- 
tions and  facilities  to  persons  doing 
business  in  such  state,  on  the  terms 
prescribed  by  such  statute:  Central  I'. 
Tel.  Co.  V.  Falley,  118  Ind.  194,  19  N. 
E.  604,  10  Am.  St.  Rep.  114.  Messages 
sent  over  such  telephones  are  commerce 
between  the  states,  and  cannot  be  pro- 
hibited by  injunction  in  either  state 
against  ])crsons  or  corporations  en- 
gaged in  sending  such  messages  be- 
cause they  do  not  pay  the  taxes  as- 
sessed against  them  by  such  state:  In 
re  Pennsylvania  Telephone  Company, 
48  X.  J.  Eq.  91,  27  Am.  St.  Rep.  462. 
20  Atl.  846. 

A  state  statute  making  it  the  duty  of 
cverj'  telegraph  and  telephone  company 
to  deliver  with  promptness  every  mes- 
sage received  to  the  person  to  whom 
it  is  addressed,  if  the  regulation  of  the 
company  require  such  delivery,  or  to 
forward  it  promptly  as  directed,  and 
providing  a  penalty  for  every  failure  to 
deliver  or  forward  such  message  as 
promptly  as  practicable,  such  penalty 
to  be  paid  to  the  person  sending  the 
message,  or  to  whom  it  is  addressed, 
as  imposing  a  burden  upon,  or  as  a 
regulation  of,  interstate  commerce, 
when  applied  to  the  failure  of  an  in- 
terstate telegraph  company  to  deliver 
a  message  in  that  state  sent  from  an- 


T.  &  T.— 40 


626 


TELEGRAPH   AXD  TELEPHONE   COMPANIES. 


l^  653 


the  exclusive  control  of  CongTess,  and  if  there  is  a  state  tax  which 
so  operates  as  to  regulate  or,  control  commerce  between  the  states 
there  is  an  invasion  of  the  domain  of  the  federal  government. -^^  So, 
it  follows  that  if  a  state  tax  operates  so  as  to  obstruct  such  commerce, 


other  state  and  delivered  in  the  former 
state:  West.  U.  Tel.  Co.  v.  Tyler,  90 
Va.  297,  18  S.  E.  280,  44  Am.  St.  Rep. 
910;  Gray  v.  Tel.  Co.,  108  Tenn.  39, 
64  S.  W.  1063,  91  Am.  St.  Rep.  706. 
But  see  Marshall  v.  West.  U.  Tel.  Co., 
79  Miss.  154,  27  So.  614,  89  Am.  St. 
Rep.  585.  They  may  enact  laws  sub- 
jecting telegraph  companies  to  penal- 
ties for  acts  of  negligence  occurring  en- 
tirely within  the  limits  of  that  state, 
although  such  acts  may  be  committed 
in  dealing  with  messages  to  be  trans- 
mitted to  points  in  other  states:  West. 
U.  Tel.  Co.  V.  Howell,  95  Ga.  194,  51 
Am.  St.  Rep.  68,  22  S.  E.  286. 

A  statute  prohibiting  all  persons 
from  engaging  in  the  business  of 
transmitting  money  to  any  racetrack 
or  other  place,  to  be  there  bet  on  any 
horse-race  trial  of  speed,  skill,  or  en- 
durance, etc.,  whether  within  or  with- 
out the  state,  and  also  from  keeping 
any  place  in  which  such  business  is 
permitted  or  carried  on,  is  valid  and 
not  unconstitutional  as  a  regulation 
of  interstate  commerce  as  applied  to 
the  agent  of  the  telegraph  company 
who  is  engaged  in  such  business,  and 
transmits  money  to  another  state  by 
telegraph  to  be  there  bet  upon  the  re- 
sult of  horse-races:  State  v.  Harbour- 
na,  70  Conn.  484,  40  Atl.  179,  66  Am. 
St.  Rep.  126;  Lacey  v.  Palmer,  93  Va. 
159,  57  Am.  St.  Rep.  795,  24  S.  E.  930. 
And  statutes  providing  the  time  in 
which  suits  are  to  be  brought  against 
telegraph  companies  for  losses  occur- 
ring in  failing  to  transmit  or  deliver 
messages  promptly  are  not  unconstitu- 
tional when  applied  to  interstate  com- 
merce.    Burgess  v.   West.   U.   Tel.   Co., 


92  Tex.  125,  46  S.  W.  794,  71  Am.  St. 
Rep.  833. 

1"  San  Francisco  v.  West.  U.  Tel.  Co., 
39  Am.  &  Eng.  Corp.  Gas.  (Colo.)  601; 
Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co., 
90  U.  S.  1 ;  West.  U.  Tel.  Co.  v.  Texas, 
105  U.  S.  400. 

A  revenue  law  providing  that,  at  a 
certain  time  in  each  year,  the  manag- 
ing officer  of  "any  telegraph  company, 
working,  operating  or  controlling  any 
telegraph  line  in  this  state,"  shall  "pay 
to  the  treasurer  a  tax  equal  to  one 
dollar  per  mile  for  the  line  of  poles 
and  first  wire,  and  fifty  cents  per  mile 
for  each  additional  wire"  imposed  a  tax 
on  the  business,  not  on  the  property, 
of  the  companies  afTected,  and  those 
companies  are  agencies  of  interstate 
commerce,  the  law  is  invalid  as  being 
an  attempted  exercise  of  a  power  be- 
longing exclusively  to  the  federal  leg- 
islature: Com.  V.  Smith,  92  Ky.  38, 
17  S.  W^  187,  36  Am.  St.  Rep.  578. 
But  a  state  tax  imposed  upon  telegraph 
companies  operating  within  the  state, 
in  lieu  of  all  other  taxes,  as  a  privi- 
lege tax,  its  amount  being  graduated 
according  to  the  amount  and  value  of 
the  property  measured  by  miles,  if  rea- 
sonable in  amount,  and  especially  if 
less  than  the  ad  valorem  state  tax  is 
valid  and  not  an  interference  with  in- 
terstate commerce  when  imposed  upon  a 
foreign  telegraph  company  operating 
its  lines  in  and  across  the  state,  al- 
though such  company  is  engaged  in 
sending  interstate  messages:  Postal 
Tel.,  etc.,  Co.  v.  Adams,  71  Miss.  555, 
14  So.  36,  42  Am.  St.  Rep.  476;  Postal 
Tel.  Co.  v.  Richmond,  99  Va.  102,  37  S. 
E.  789,  86  Am.  St.  Rep.  877. 


§  054] 


TAXATION. 


627 


the  statute  imposing  such  tax  is  invalid,  since  no  state  can  obstruct  or 
hinder  interstate  commerce.  The  general  principle  in  regard  to  thi^ 
subject  is  easily  imderstood,  but  it  is  very  difficult  to  apply  it  to  the 
different  cases,  and  it  is  well  to  say  that  each  case  must  be  considered 
in  its  own  light  in  order  to  a-cortnin  ns  to  whether  the  principles  are 
applicable  thereto. 

§  654.     Property  of  telegraph  and  telephone   companies  used  in 
interstate  commerce — subject  to  state  taxes. 

When  property  is  used  in  interstate  commerce,  this  fact  does  not 
exonerate  it  from  state  taxes.-"^  The  property,  having  its  situs  within 
the  state  imposing  the  taxes,  may  be  taxed  by  the  state  although  it 
is  used  exclusively  for  interstate  commerce,  but  the  business  of  in- 
terstate commerce  itself  cannot  be  burdened  with  such  taxes.- ^     "Its 


^oWest.  U.  Tel.  Co.  v.  Texas,  105  U. 
S.  4G0;  West.  U.  Tel.  Co.  v.  Atty.-Gen., 
125  U.  S.  530,  8  Sup.  Ct.  R.  961;  Le- 
loup  V.  Mobile,  127  U.  S.  640,  8  Sup. 
Ct.  R.  1380;  Postal  Tel.  Cable  Co.  v. 
Adams,  71  Miss.  555,  42  Am.  St.  Rep. 
476,  14  So.  36. 

In  West.  U.  Tel.  Co.  v.  Massachu- 
setts, 145  U.  S.  530,  the  court,  said: 
"While  the  state  could  not  interfere 
by  any  specific  statute  to  a  corporation 
from  placing  its  lines  along  their  post 
roads  or  stop  the  use  of  them  after 
they  were  placed  there,  nevertlieless  the 
company  receiving  the  benefits  of  the 
laws  of  the  state  for  the  protection  of 
its  property  and  its  rights  is  liable  to 
be  taxed  upon  its  real  and  personal 
property  as  any  other  person  would  be. 
It  never  could  have  been  intended  by 
the  Congress  of  the  United  States,  in 
conferring  upon  a  corporation  of  one 
state  the  authority  to  enter  the  terri- 
tory of  another  state,  and  erect  its 
poles  and  lines  therein,  to  establish  the 
proposition  that  such  a  company  owed 
no  obedience  to  the  laws  of  the  state 
into  which  it  thus  entered,  and  was  un- 
der no  obligation  to   pay  its  fair  pro- 


portion of  tlie  taxes  necessary  to  its 
support." 

In  another  case  the  court,  said : 
"The  Western  Union  Telegraph  Compa- 
ny, having  accepted  restrictions 
and  obligations  of  this  provision 
by  Congress,  occupies  in  Texas 
the  position  of  an  instrument  of  for- 
eign and  interstate  commerce,  and  of 
a  government  agent  for  the  transmis- 
sion of  messages  on  public  business. 
Its  property  in  the  state  is  subject  to 
taxation  the  same  as  other  property, 
and  it  may  undoubtedly  be  taxed  in 
a  proper  way  on  account  of  its  occupa- 
tion and  business:"  West.  U.  Tel.  Co. 
V.  Texas,  105  U.  S.  460.  See  also  West. 
U.  Tel.  Co.  V.  Massachusetts,  127  U.  S. 
530,  8  S.  Ct.  Rep.  1297. 

-*  Pullman  Palace  Car.  Co.  v.  Penn- 
sylvania, 141  U.  S.  18,  11  S.  Ct.  Rep. 
876;  Dubuque  v.  I.  C.  R.  Co.,  39  Iowa 
56;  West.  U.  Tel.  Co.  v.  Taggart,  141 
Ind.  281,  40  N.  E.  1051,  60  L.  R.  A. 
G71n;  Osborne  v.  State,  33  Fla.  162,  14 
So.  588,  25  L.  R.  A.  120,  39  Am.  St. 
Rep.  99;  Postal  Tel.  Cable  Co.  v.  Rich- 
mond, 99  Va.  102.  37  S.  E.  789,  86  Am. 
St.  Rep.  877. 


62S  TELEGRAPH   AND  TELEPHONE   COMPANIES.  [§    654 

property  in  the  state  is  subject  to  taxation  the  same  as  other  property ; 
and  it  may  undoubtedly  be  taxed  in  a  proper  way  on  account  of  its 
occupation  and  its  business."  ^-  The  exemption  of  interstate  and 
foreign  commerce  from  state  regulation  does  not  prevent  the  state 
from  taxing  the  property  of  those  engaged  in  such  commerce  located 
within  the  state,  as  the  property  of  other  citizens  is  taxed,  nor  from 
regulating  matters  of  local  concern  which  may  incidentally  affect 
commerce.^^  Thus,  a  statute  is  held  valid  which  authorizes  the  taxa- 
tion by  several  towns  of  the  state,  of  the  portions  of  telegi-aph  lines 
in  such  towns,  including  the  interest  on  the  value  of  land  occupied  by 
the  line,  all  poles,  insulators,  wires  and  apparatus,  although  such 
lines  may  run  into  other  states.^^  And  the  fact  that  the  company  has 
paid  a  privilege  tax,  does  not  release  it  from  liability  for  taxes  as- 
sessed on  its  property,  such  as  its  poles,  wires  and  other  instru- 
ments.-^ 

§  655.     Taxation  on  capital  stock  in  proportion  to  length  of  line 
in  state. 

It  has  been  held  b}-  courts  of  last  resort  that  the  taxing  officers  may 
take  into  consideration  the  lines  of  wires  extending  into  and  through 
other  states,  in  determining  the  value  of  the  entire  line.-*^  A  Massa- 
chusetts statute,  ^'^  provided  that  every  telegraph  company  owning  n 
line  in  the  state  should  be  taxed  on  such  proportion  of  the  whole  value 
of  its  capital  stock  as  the  length  of  its  line  in  the  state  bears  to  the 
whole  length  of  its  line  everywhere,  after  deducting  the  value  of  any 
property  owned  by  it  subject  to  local  taxation  in  the  cities  and  towu'^ 

"West.  U.  Tel.  Co.  v.  Massachusetts,  .357;    People   v.   Dolan,    120   X.   Y.   KiC. 

12.5    U.    S.    350,    33    Fed.    129,    141    U.  12  L.  R.  A.  251. 

S.  40,  11  S.  Ct.  Rep.  889;  Taylor  v.  =MVest.  U.  Tel.  Co.  v.  State,  9  Baxt. 
Secor,  92  U.  S.  575;  West.  U.  Tel.  (Tenn.)  509,  40  Am.  Rep.  99. 
Co.  V.  State,  9  Baxt.  (Tenn.)  509,  40  ^nVest.  U.  Tel.  Co.  v.  Attorney-Gen- 
Am.  Rep.  99;  Postal  Tel.  Cable  Co.  v.  eral,  125  U.  S.  530,  8  Sup.  Ct.  R.  961: 
Adams,  71  Miss.  555,  14  So.  36,  42  Am.  Pittsburg,  etc..  Co.  v.  Backers,  154  U. 
St.  Rep.  476.  S.  421,  14  Sup.  Ct.  Fv.  1114;  Columbus. 

^^Leloup   V.    Mobile,    127    U.    S.    040,  etc.,  R.   Co.   v.  Wright,   I.'jI   U.   S.  470. 

8  S.  Ct.  Rep.   1380,  affirming  West.  U.  14  Sup.  Ct.  R.  390;   West.  U.  Tel.  Co. 

Tel.    Co.   V.   Massachusetts,    125   U.    S.  v.  Massachusetts,  125  U.  S.  530,  8  Sup. 

530,  8  S.  Ct.  Rep.  961.  Ct.  R.  961. 

=*  People  V.  Tierney,  57  Hun    (N.  Y.)  =' Chapter  13,  §  35. 


§  G57]  TAXATiox.  629 

of  the  state.  It  was  held,  that  such  tax  was  not  in  violation  of  the  in- 
terstate commeree  clause  of  the  constitution.  In  rendering  an  opinion 
on  this  statute,  the  court  said:  "The  statute  .  .  .  intended  to  gov- 
<  rn  tlic  taxation  of  all  corporations  doing  business  within  its  terri- 
tory, whether  organized  under  its  own  laws  or  under  those  of  some 
other  state ;  and  the  rule  adopted  to  ascertain  the  amount  of  the  cap- 
ital engaged  in  that  business  within  its  boundaries  on  which  the  tax 
should  be  assessed,  is  not  an  unfair  or  unjust  one,  and  the  details  of 
the  method  by  which  this  was  determined  have  not  exceeded  the  fair 
range  of  legislative  discretion."  -^ 

§  656.     Mileage  basis  of  valuation. 

It  has  also  been  decided  that  the  taxing  officers  may  make  a  valua- 
tion upon  the  mileage  basis,  although  the  property  may  be  used  for 
interstate  commerce.  Thus,  a  state  privilege  tax  of  a  certain  amount 
per  mile  of  wires  operating  within  the  state,  imposed  on  all  telegraph 
companies  therein  operating,  in  lieu  of  all  other  state,  county  and 
municipal  taxes,  and  amounting  to  less  than  the  ordinary  ad  valorem 
tax,  is  substantially  a  mere  tax  on  property,  to  which  a  foreign  cor- 
poration operating  within  the  state  is  subject,  notwithstanding  it  is 
engaged  in  interstate  commerce.-^  But  a  general  tax,  imposed  upon 
a  telegraph  company,  affects  its  entire  business,  interstate  as  well  as 
domestic  or  internal,  and  is  unconstitutional.  So,  there  is  a  distinc- 
tion between  such  cases  when  the  taxes  are  imposed  upon  the  busi- 
ness of  interstate  commerce  itself  and  those  which  may  be  laid  upon 
the  property  within  the  state  employed  in  such  business.^^ 

§  657.     Assessment  of    telegraph    lines    for    taxation — New    York 
state. 

A  statute  '^^  in  Xew  York  provides  that  telegraph  lines  shall  be  as- 
sessed ^'in  the  manner  provided  by  law  for  the  assessment  of  lands," 

=*West.  U.  Tel.  Co.  v.  Massachusetts,  Grand  Trunk,  etc.,  Co..  142  U.  S.  217, 

141  U.  S.  40,  11  S.  Ct.  Rep.  889.  12   Sup.   Ct.   R.   121. 

^West.  U.  Tel.  Co.  v.  Ma.ssachusetts,  ^  Leloup   v.    Port   of   Mobile,    127   U. 

125  U.  S.  530,  8  Sup.  Ct.  R.  961;  Pull-  S.   640.  8  S.  Ct.  Rep.   1380. 

man,  etc.,  Co.  v.  Pennsylvania,   141  U.  "  La^YS    1SS6,   ch.    659. 
S.    18,    11    Sup.   Ct.   R.    87G:    Maine   v. 


630  TELEGRAPH  AISTD  TELEPHONE   COMPANIES.  [§    657 

and  that  the  Avord  "line"  shall  include  ''the  interest  in  the  land  on 
which  the  poles  stand,  the  right  or  license  to  erect  such  poles  on  land, 
and  all  poles,  arms,  insulators,  wires,  apparatus,  instruments,  or  other 
things  connected  with  or  used  as  a  part  of  such  line."  It  is  held  that, 
in  making  the  assessment,  the  property  is  not  to  he  regarded  as  a 
whole,  nor  as  a  complete  telegraph  line  in  operation,  but  that  the  true 
value  is  obtained  by  taking  the  cost  of  production  of  poles,  wires  and 
other  apparatus,  which  are  in  their  nature  personalty,  and  adding 
thereto  the  value  of  the  company's  interest  in  the  land  on  which  the 
poles  stand,  and  the  right  to  erect  the  poles  thereon. 2-  In  the  same 
case  it  is  held  that  in  arriving  at  the  value  of  the  interest  in  the  land 
on  which  the  poles  stand  and  of  the  right  to  erect  such  poles,  it  is  to 
be  considered  that  so  far  as  the  line  is  erected  upon  the  highway,  the 
only  interest  that  the  company  has  is  a  mere  license,  revocable  at 
the  will  of  the  legislature,  of  which  license  any  other  company  may 
avail  itself.  The  expense  which  the  company  incurred  in  obtaining 
the  interest  is  the  correct  criterion  by  which  to  judge  of  its   value.^^ 

§  658.     License  tax — cannot  be  imposed. 

A  license  tax  is  a  tax  imposed  as  a  condition  of  permitting  busi- 
ness to  be  conducted  within  the  state  imposing  such  tax,  and  is  there- 
fore a  tax  upon  interstate  commerce,  and  for  this  reason  is  invalid. 
Thus,  where  a  telegraph  company  is  carrying  on  the  business  of  trans- 
mitting messages  between  the  different  states,  and  has  accepted  and 
is  acting  under  the  telegraph  laws  passed  by  Congress,^*  no  state, 
within  which  it  sees  fit  to  establish  an  office,  can  impose  upon  it  a 
license  tax,  or  require  it  to  take  out  a  license  for  the  transaction  of 
such  business.^ ^      Such  tax  is  not  a  tax  upon  the  property  of  these 

'==  People  V.  Dolan,  126  N.  Y.  166,  12  of  two  hundred  and  twenty-five  dollars 

L.  K.  A.  251.  on  every  telegraph  company  in  the  city. 

^  Id.  The   agent   of   the   company   vi'as    fined 

'"'*  July   24,    1866.  for  non-payment  of  the  tax.  In  an  ac- 

^Leloup   V.    Mobile,    127    U.    S.    640,  tion  to  recover  the  amount  of  the  fine, 

S  S.  Ct.  Rep.   1.380.     The  Western  Un-  it   was   held,   reversing  the   decision   of 

ion  Telegraph  Company  established  an  the  state  supreme  court,  that  such  tax 

office  in  the  city  of  ]\Iobile  and  was  re-  affected  the  entire  business  of  the  com- 

quired   to   pay   a    license   tax   under   a  pany  interstate  as  well  as  domestic  and 

city  ordinance  imposing  an  annual  tax  was    constitutional.      The    state    court 


^  658] 


TAXATIOX. 


631 


companies,  nor  is  it  the  exaction  of  a  fee  for  the  privilege  of  becom- 
ing a  corporation.  If,  however,  the  license  tax  is  only  imposed  on 
"each  and  every  person  or  company  engaging  in  the  business  of  send- 
ing and  receiving  telegi-aphic  messages  to  and  from  points  within  the 
state     .     .     .     and  keeping  an  office  or  place  of  business"  therein, 


relied  mainly  on  the  case  of  Osborne 
V.  Mobile,  16  Wall.  (U.  S.)  479,  which 
held  that  an  ordinance  of  the  city  of 
Mobile  was  not  unconstitutional,  which 
required  every  express  company  or  rail- 
road company  doing  business  there,  and 
having  a  business  extending  beyond  the 
limits  of  the  state,  to  pay  an  annual 
tax  of  five  hundred  dollars ;  if  the  bus- 
iness was  confined  within  the  limits  of 
the  state,  a  tax  of  one  hundred  dol- 
lars; if  confined  within  the  city,  of  fif- 
ty dollars.  The  decision  of  the  state 
court,  however,  was  reversed. 

A  license  tax  imposed  by  a  city  upon 
telegraph  companies  in  the  following 
terms:  "Telegraph  companies  each,  for 
business  done  exclusively  within  the 
city  of  Charleston,  and  not  including 
any  business  done  to  or  from  points 
without  the  state,  and  not  including 
any  business  done  for  the  government 
of  the  United  States,  its  officers  or 
agents,  $500,"  is  not  invalid  as  applied 
to  a  company  partly  engaged  in  trans- 
mitting interstate  messages,  and  which 
has  accepted  the  provisions  of  the  Act 
of  July  24,  ISGG,  and  thereby  become 
an  agency  of  the  United  States,  56 
Fed.  419;  affirming  Postal  Tel.  Ca- 
ble Co.  V.  City  Council  of  Charleston, 
153  U.  S.  692,  14  Sup.  Ct.  R.  1049.  A 
contention  that  a  telegraph  company 
seeking  to  enjoin  collection  of  the  tax 
is  not  within  the  scope  of  the  ordinance 
because  it  in  fact  does  no  business  "ex- 
clusively within  the  city,"  and  that  its 
city  offices  are  merely  initial  points 
for  sending  messages  to  points  outside 
the  city,  cannot  be  considered,  for  if 
the  state  has    power  to    tax    business 


done  within  the  limit,  the  exercise  of 
that  power  cannot  be  corrected  by  the 
federal  court. 

A  similar  tax  was  sustained  in  West. 
Union  Telegraph  Company  ( Neb. ) ,  58 
N.  W.  415.  The  ordinance  levying  the 
tax  was  as  follows:  "Section  1.  That 
there  is  hereby  levied  a  license  tax  on 
each  and  every  occupation  and  business 
within  the  limits  of  this  city,  in  this 
section  hereinafter  enumerated,  to  raise 
a  revenue  thereby  in  the  several  dif- 
erent  sums  of  the  several  different  bus- 
nesses  and  occupations,  respect- 
tively,  as  follows:  No.  1.  The  sum  of 
one  hundred  dollars  per  year  on  the 
business  and  occupation  of  receiving 
messages  in  this  city  from  persons  in 
this  city  and  transmitting  the  same  by 
telegraph  from  this  city  within  this 
state  to  persons  and  places  within  this 
state,  and  receiving  in  this  city  mes- 
sages by  telegraph  transmitted  with- 
in this  state  from  persons  and  places  in 
this  state  to  persons  within  this  city 
and  delivering  the  same  to  persons  in 
this  city,  excepting  the  receipt,  trans- 
mission and  delivery  of  any  such  mes- 
sage to  and  from  any  department, 
agency,  or  agent  of  the  United 
States  and  excepting  the  receipt, 
transmission  and  delivery  of  any 
such  message  are  inter-state  com- 
nierco:  the  business  and  occu- 
pation of  receiving,  transmitting  and 
delivering  of  the  messages  herein  ex- 
cepted is  not  taxed  hereby."  The  court 
held  the  following  propositions:  1. 
State  and  municipal  authorities  are 
powerless  to  impose  a  tax  upon  mes- 
sages to  or    from    other    states,  since 


632  TELEGKAPII  A^^D   TELEPIIOA'^E   C0:MPANIES,  \_^    658 

the  rule  would  be  otherwise."'^  In  this  case,  the  license  tax  may  be 
enforced  without  interfering  with  interstate  commerce  or  the  rights 
of  the  general  government  secured  to  it  under  the  act  of  Congress.^' 
So,  it  has  been  held  that  an  annual  charge  of  five  dollars  per  pole  upon 
the  poles  of  a  telegraph  company  already  established,  under  an  ex- 
press provision  by  ordinance  imposed  by  a  municipality  as  a  '^'con- 
sideration for  the  privilege,"  is  not  a  tax,  either  on  property  or  as 
a  license;  nor  is  it  an  exercise  of  the  police  power,  as  it  involves  no 
consideration  of  public  order,  health,  morals,  or  convenience,  and  can 
not  therefore  be  sustained,-^^  although  it  may  be  enforced  if  the  ordi- 
nance imposing  it  is  a  police  regulation. ^^ 

§  659.     Distinction  between  property  tax  and  privilege  tax. 

As  it  has  been  seen,  a  state  may  impose  a  tax  upon  property  within 
the  state,  although  it  nuiy  be  used  for  interstate  commerce,  but  a 
privilege  tax,  as  said,  is  not  a  property  tax.  Whether  the  tax  is 
laid  upon  property  or  imposed  as  a  condition  or  privilege  of  conduct- 
ing business  within  the  state,  is  a  question  to  be  determined  from  the 
operation  and  practical  effect  of  the  statute  and  not  from  its  mere 

such   a   tax   would   be   iu   conflict   with  etc.,   52   La.   Ann.     1082,    78    Am.     St. 

that  clause  of  the  Federal  Constitvition  Rep.   387,  27   So.   590. 
which  gives   to   Congress  the   exclusive  =®  West.   U.   Tel.   Co.  v.   Philadelphia, 

power  to  regulate  commerce  among  21  Am.  &  Eng.  Corp.  Cas.  (Pa.)  40. 
the   several   states.     2.      Where  a   tele-  The    power    of     a     municipality     to 

graph  company  is  engaged  in  both  in-  charge   license   fees   to   railway   compa- 

terstate  and  intrastate  business,  an  or-  nies,    telegraph    and    telephone  compa- 

dinance   levying  an   occupation   tax   on  nies,    and     other     public      institutions, 

that  portion  of  such  business  which  is  cannot  be  questioned,   so  long  as  such 

carried  on  wholly   within   the   state   is  license   is     a     police     regulation,     and 

not  repugnant  to  section  8,  article  — ,  tends  to  accomplish  the  object  sought. 

of     the     Constitution     of     the     United  See,  on  this   subject,  Mayor   of  Mobile 

States  since  it  in  no     way     interferes  v.  Yuille,  3  Ala.  137;   Chicago  Packing 

with,  or  regulates,  interstate  commerce.  &     Provision     Co.   v.   Chicago,  88    111. 

^'^Leloup  V.  .Mobile,  127  U.  S.  640,  8  221;   State  v.  Herod,     29     Iowa     123; 

S.  Ct.  Rep.  1380;  Postal  Tel.  Cable  Co.  Boston  v.  Schaffer,  26  Mass.    (9  Pick.) 

V.   Charleston,   153   U.   S.  692,    14   Sup.  415;   Van  Bachen  v.   People,  40  Mich. 

Ct.   R.    1049;    West.     U.     Tel.     Co.     v.  258;    State  v.   Cassidy,  22   Minn.   312; 

Freemont    (Neb.),  58  N.  W.  415.  New  York  City  v.  Second  Ave.  R.  Co.. 

^'Leloup   v.    Mobile,    127    U.    S.    040,  32    N.    Y.    261;    May   v.    Cincinnati,    1 

8   S.   Ct.  Rep.   1380.  Ohio  St.  268;   Munn  v.  Illinois,  94  U. 

=«New  Orleans  v.   Great  South.   Tel.,  S.   113,  24  L.  Ed.   77. 


§  659] 


TAXATION. 


633 


foi-m.^^  The  distinction  between  a  privilege  tax  and  property  tax 
is  a  subtle  one,  and  it  is  not  by  any  means  easy  to  draw  the  line  which 
separates  them.'*^ 


"New  Orleans  v.  Great  South.  Tel., 
etc.,  Co.,  52  La.  Ann.  1082,  27  So.  590. 
78  Am.   St.  Eep.  387. 

The  nature  and  object  of  a  license 
and  a  tax  are  entirely  difTerent;  the 
object  of  a  tax  is  the  revenue,  the  ob- 
ject of  a  license  is  a  rcfjulation;  and 
the  fact  that  the  license  fee  is  payable 
into  the  treasury  of  the  municipality 
does  not  make  such  license  a  tax  where 
the  fee  is  unreasonable,  and  tends  to 
promote  the  object  of  the  ordinance: 
East  St.  Louis  v.  Wehering,  46  111. 
392;  State  v.  Herod,  29  Iowa  123.  If 
the  license  is  unreasonable,  and  more 
than  sufficient  to  effect  the  ostensive 
regulative  purposes,  it  will  be  a  tax 
and  not  a  license:  New  Orleans  v. 
Great  South  Tel.,  etc.,  Co.,  52  La. 
Ann.  1082,  27  So.  590,  78  Am.  St. 
Rep.  387. 

*^The  question  received  consideration 
in  the  case  of  the  Postal,  etc.,  v.  Ad- 
ams, 155  U.  S.  088,  15  Sup.  Ct.  Rep. 
268,  where  it  was  held  that  a  tax  of 
a  designated  sum  per  mile  of  telegraph 
wire  in  the  state  was  a  tax  on  prop- 
erty and  not  a  mere  privilege  tax. 
The  court  used  this  language:  "As 
pointed  out  by  Mr.  Justice  Field  in 
Horns  Silver  jMin.  Co.  v.  New  York, 
143  U.  S.  305,  12  Sup.  Ct.  Rep.  403, 
the  right  of  the  state  to  tax  the 
franchise  or  privilege  of  being  a  cor- 
poration as  personal  property  has  been 
repeatedly  recognized  by  this  court, 
and  this,  whether  the  corporation  be 
domestic  or  a  foreign  corporation,  do- 
ing business  by  permission  within  the 
state.  But  a  state  cannot  exclude  from 
its  limits  a  corporation  engaged  in 
interstate  or  foreign  commerce,  or  a 
corporation   in   the   employment   of   the 


general  government,  either  directly  in 
terms  or  indirectly  by  the  imposition 
of  inadmissible  conditions.  Neverthe- 
less the  state  may  subject  it  to  such 
property  taxation  as  only  incidentally 
afTects  its  occupation,  as  all  business, 
whether  of  individuals  or  corporations, 
is  affected  by  common  governmental 
burdens.  Ashley  v.  Ryan,  153  U.  S. 
436,  14  Sup.  Ct.  Rep.  865,  and  cases 
cited. 

Doubtless  no  state  could  add  to  the 
taxation  of  property  according  to  the 
rule  of  ordinary  property  taxation,  the 
burden  of  a  license  or  other  tax  or  the 
privilege  of  using,  constructing  or  op- 
crating  an  instrumentality  of  inter- 
state or  international  commerce  or  for 
the  carrying  on  of  such  commerce;  but 
the  value  of  property  results  from  the 
use  to  whicli  it  is  put  and  varies  with 
the  profitableness  of  that  use,  and  by 
whatever  name  the  exaction  may  be 
called,  if  it  amounts  to  no  more  than 
the  ordinaiy  tax  upon  property,  or  a 
just  equivalent  therefor,  ascertained  by 
reference  thereto,  it  is  not  open  to  at- 
tact  as  inconsistent  with  the  constitu- 
tion. Cleveland,  etc.,  R.  Co.  v.  Back- 
us, 154  U.  S.  439,  14  Sup.  Ct.  Rep. 
1122.  The  method  of  'taxation  by  a 
tax  on  privileges'  has  been  determined 
by  the  Supreme  Court  of  ^lississippi 
to  be  in  harmony  with  the  constitution 
of  that  state,  and  that  'where  the  par- 
ticular arrangement  of  taxation,  pro- 
vided by  legislative  wisdom,  may  be  ac- 
counted for  on  the  assumption  of  com- 
promising or  commuting  for  a  just 
equivalent,  according  to  the  determina- 
tion of  the  legislature,  in  the  general 
scheme  of  taxation,  it  will  not  be  con- 
demned  bv   the   courts   as   violative   of 


634 


TELEGRAPH   AND   TELEPHONE   COMPANIES. 


[§  660 


§  660.     Excise  tax. 

It  has  been  held  by  a  divided  opinion  of  the  United  States  Su- 
preme Court,  that  an  excise  tax  could  be  imposed  upon  a  railroad 
company  carrying  on  interstate  commerce.  In  this  decision,  the 
cases  denying  the  power  of  a  state  to  levy  a  privilege  tax  are  not  de- 
nied expressly,  but  it  is  held  therein  that  a  state  is  not  precluded 
from  levying  an  excise  tax."*^     iN^o  case  against  a  telegraph  company, 


the  state  constitution.'  Vicksburg 
Bank  v.  Worrell,  67  Miss.  47,  7  So. 
219.  In  that  case  privilege  taxes  im- 
posed on  bank  of  deposit  or  discount, 
which  varied  with  the  amount  of  cap- 
ital stock  or  assets,  and  were  declared 
to  be  in  lieu  of  all  other  taxes,  state, 
county  or  municipal,  upon  the  shares 
and  assets  of  said  bank,  came  under 
review,  and  it  was  decided  that  the 
privilege  tax,  to  be  effectual  as  a  re- 
lease from  liability  for  all  other  taxes, 
must  be  measured  by  the  capital  stock, 
and  the  entire  assets  or  wealth  of  the 
bank,  and  that  real  estate  bought  with 
funds  of  the  bank  was  exempt  from 
the  ordinary  ad  valorem  taxes,  but  was 
part  of  the  assets  of  the  bank  to  be 
considered  in  fixing  the  basis  of  its 
privilege  tax." 

*^  In  the  case  of  Maine  v.  Grand 
Trunk,  etc.,  Co.,  142  U.  S.  217,  12  Sup. 
Ct.  Rep.  163,  the  court,  said:  "The 
tax,  for  the  collection  of  which  this 
action  is  brought,  is  an  excise  tax  upon 
the  defendant  corporation  for  the 
privilege  of  exercising  its  franchises 
within  the  state  of  Maine.  It  is  so 
declared  in  the  statute  which  imposes 
it;  and  that  a  tax  of  this  character 
is  within  the  power  of  the  state  to 
levy  there  can  be  no  question.  The 
designation  does  not  always  indicate 
merely  an  inland  imposition  or  duty  on 
the  consumption  of  commodities,  but 
often  denotes  an  impost  for  a  license 
to  pursue   certain   callings,   or   to   deal 


in  special  commodities,  or  to  exercise 
particular  franchises.  It  is  used  more 
frequently,  in  this  country,  in  the  lat- 
ter sense  than  in  any  other.  The  priv- 
ilege of  exercising  the  franchises  of  a 
corporation  within  a  state  is  generally 
one  of  value,  and  often  of  great  value, 
and  the  subject  of  earnest  contention. 
It  is  natural,  therefore,  that  the  cor- 
poration should  be  made  to  bear  some 
proportion  of  the  burdens  of  govern- 
ment. As  the  granting  of  the  privilege 
rests  entirely  in  the  discretion  of  the 
state  whether  the  corporation  be  do- 
mestic or  of  foreign  origin,  it  may  be 
conferred  upon  such  conditions,  pecu- 
niary or  otherwise,  as  the  state,  in  its 
judgment,  may  deem  most  conducive  to 
its  interest  or  policy.  It  may  require 
the  payment  into  its  treasury,  each 
year,  of  a  specific  sum,  or  may  appor- 
tion the  amount  exacted  according  to 
tlie  value  of  the  business  permitted,  as 
disclosed  by  its  gains  or  receipts  of  the 
present  or  past  years.  The  character 
of  the  tax,  or  its  validity,  is  not  de- 
termined by  the  mode  adopted  in  fixing 
its  amount  for  any  specific  period,  or 
the  times  of  its  payment.  The  whole 
field  of  inquiry  into  the  extent  of  rev- 
enue from  sources  at  the  command  of 
the  corporation  is  open  to  the  consid- 
eration of  the  state  in  determining  in 
what  may  be  justly  exacted  for  the 
privilege.  The  rule  of  apportioning 
the  charge  of  the  receipts  of  the  busi- 
ness would  seem  to  be  eminently  rea- 


<§  660] 


TAXATION. 


635 


to  onr  knowledge,  has  been  tested  with  respect  to  this  question,  hut 
we  presume  the  same  ruling  would  he  held.  The  distinction  drawn 
between  the  excise  tax  as  given  in  the  case  cited  and  the  privilege 
tax  is  not  very  clear,  and  it  seems  that  the  reasons  given  by  the  min- 
ority of  judges  who  sat  upon  this  case  are  the  more  plausible.^^ 


sonable,  and  likely  to  produce  the 
most  satisfactory  results,  both  to  the 
state  and  the  corporation  taxed." 

**Mr.   Justice   Bratley,     who     wrote 
the  minority  opinion   (concurred  in  by 
Harland,  Lamar     and     Brown,     JJ.) , 
said:      "But   passing   this   by,   the    de- 
cisions  of  this  court  for  a   number  of 
years    past    have   settled    the    principle 
that  taxation      (which     is     a  mode  of 
regulation)    of  interstate  commerce,  or 
of     the     revenues     derived     therefrom 
(which  is  the  same  thing),  is  contrary- 
to  the    constitution.       Going    no    fur- 
ther back    than    Pickard    v.    Pullman, 
etc.,  Car  Co..  117  U.  S.  34,  6  Sup.  Ct. 
Rep.  635,  we  find     that     principle  laid 
down.     There  a  privilege  tax  was   im- 
posed upon  Pullman's  Palace  Car  Co., 
by   general   legislation,   it   is   true,   but 
applied     to  the  company,  of  $50     per 
annum   on  every     sleeping     car  going 
through  the  state.     It  was  known,  and 
appears  by  the  record,  that  every  sleep- 
ing car  going  through  the  state  carried 
passengers  from  Ohio  and  other  north- 
ern states  to  Alabama,  and  vice  versa, 
and     we  held  that  Tennessee    had     no 
right   to   tax  those   cars.      It  was   the 
same   thing  as   if  they  had  taxed  the 
amount    derived    from    the    passengers 
in  the  cars.     So,  also,  in  the  case  of 
Leloup   V.    Port   of  Mobile,    127    U.    S. 
040,    8    Sup.    Ct.    Rep.    1380,    we    held 
that  the  receipts   derived  by  the  tele- 
graph company  from  the  messages  sent 
to  one  state  from  another  could  not  be 
taxed.     So  in  the  case  of  Norfolk,  etc., 
R.  Co.  V.  Pennsylvania,  136  U.  S.   114, 
10  Sup.  Ct.  Rep.  958,  where  the  rail- 
road was  a  link  in  a  through  line  by 


which  passengers  and  freight  were  car- 
ried into  other  states,  the  company 
was  held  to  be  engaged  in  the  business 
of  interstate  commerce,  and  could  not 
be  taxed  for  the  privilege  of  keeping 
an  office  in  the  state.  And  in  the  case 
of  Crutcher  v.  Kentucky,  141  U.  S. 
47,  11  Sup.  Ct.  Rep.  851,  we  held  that 
the  taxation  of  an  express  company 
for  doing  an  express  business  between 
different  states  was  unconstitutional 
and  void.  And  in  the  case  of  Philadel- 
phia, etc..  Steamship  Co.  v.  Pennsylva- 
nia, 122  U.  S.  326,  7  Sup.  Ct.  Rep. 
1118,  we  held  that  a  tax  upon  the 
gross  receipts  of  the  company  was 
void,  because  they  were  derived  from 
interstate  and  foreign  commerce.  A 
great  many  other  cases  might  be  re- 
ferred to  showing  that  in  the  decisions 
and  opinions  of  this  court  this  kind 
of  taxation  is  unconstitiitional  and 
void.  We  think  that  the  present  de- 
cision is  a  departure  from  the  line  of 
these  decisions.  The  tax,  it  is  true,  is 
called  a  'tax  on  franchise.'  It  is  so 
called,  but  what  is  it  in  fact?  It  is  a 
tax  on  the  receipts  of  the  company  de- 
rived from  international  transporta- 
tion. This  court  and  some  of  the  state 
courts  have  gone  a  great  length  in  sus- 
taining various  forms  of  taxes  upon 
corporations. 

The  train  of  reasoning  upon  which  it 
is  founded  may  be  questionable.  A 
corporation,  according  to  this  class  of 
decisions,  may  be  taxed  several  times 
over.  It  may  be  taxed  for  its  charter, 
for  its  franchises,  for  the  privilege  of 
carrying  on  its  business;  it  may  be 
taxed     on  its  capital,  and  it     may     be 


636  TELEGRAPH   AXD   TELEPHOXE   COMPANIES.  [^    661 

§  661.     Taxation  on  gross  receipts — interstate  business. 

It  is  a  general  rule,  upheld  by  all  the  cuurts,  that  a  tax  cannot  be 
imposed  on  the  business  of  interstate  commerce,^"*  but  it  is  sometimes 
difficult  to  give  practical  effect  to  the  general  rule.  A  tax  cannot  be 
laid  on  the  gToss  receipts  of  an  interstate  company,  as  this  is  a  tax 
upon  the  business  of  interstate  commerce.^''  But  it  has  been  held 
that  a  single  tax  assessed  under  the  statute  of  a  state  upon  the  re- 
ceipts of  a  telegraph  company,  which  are  derived  partly  from  inter- 
state commerce  and  partly  from  commerce  within  the  state,  which  tax 
is  assessed  and  returned  in  gross  and  without  separation  and  appor- 
tionment, is  not  wholly  invalid,  but  is  invalid  only  to  the  extent  that 
such  receipts  are  derived  from  interstate  commerce.^*^ 

§  662,     Same  on  message. 

A  tax  imposed  by  a  state  on  telegraph  messages  in  general  is  in- 
valid, except  in  respect  to  messages  transmitted  wholly  within  the 
state.^'''  A  different  rule  was  held  by  some  of  the  state  courts,  but 
the  ruling  of  the  Supreme  Court  of  the  United  States  is  as  first 

taxed  on  its  property.     Each  of  these  « Tel.   Co.  v.  Texas,   105  U.   S.  460; 

taxations  may  be     carried     to  the  full  Philadelphia,  etc.,  Co.  v.  Pennsylvania, 

amount     of  the  property  of  the     com-  122  U.  S.  326;  Ratterman  v.  West.  U. 

pany."  Tel.   Co.,    127   U.    S.    411;     Gloucester 

"Leloup    V.    Port  of  Mobile,   127  U.  Ferry  Co.  v.  Pennsylvania  Co.,  114  U. 

S.  640,  8  Sup.  Ct.  Rep.  1380;  West.  U.  S.  196;  McCall  v.  California,  136  U.  S. 

Tel.  Co.  V.  Ratterman,   127  U.  S.  411;  104;  West.  U.  Tel.  Co.  v.  Pennsylvania, 

West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  128  U.   S.   3!):   West.    U.    Tel.    Co.    v. 

(15  Otto.)    460,  26  L.  Ed.  1067;   Pen-  Seay,  132  U.  S.  472;  Leloup  v.  Port  of 

sacola  Tel.    Co.   v.   West.   U.   Tel.   Co.,  Mobile,   127   U.   S.   640;    Charleston  v. 

96  U.   S.    (6  Otto.)    1,  24  L.  Ed.  708;  Postal   Tel.   Cable   Co.    (S.   C),   9   Ry. 

Gibbons  v.  Ogden,  22  U.  S.  (9  Wheat.)  &  Copp.  L.  J.   129;   Crandall  v.  Neva- 

1,   6  L.   Ed.   23;    Smith   v.   Turner.   48  da.  6  Wall.   (U.  S.)   35. 

U.   S.    (7   How.)    283,   12   L.   Ed.   702:  ^^  Rattennan     v.  West.  U.  Tel.     Co., 

Thurlo  v.   Massachusetts,   46  U.   S.    (5  127  U.  S.  411. 

How.)    504,   12  L.  Ed.  256;   Brown  v.  "'Wabash  St.  L.  &  P.  R.  Co.  v.  Illi- 

Maryland,  25  U.   S.    (12  Wheat.)    419,  nois,    118    U.    S.    557,   30   L.    Ed.   244; 

6  L.  Ed.  678;   Moran  v.  New  Orleans,  West.  U.  Tel.  Co.  v.   Texas,   105  U..  S. 

112   U.    S.    (12    Otto.)    69,   28   L.    Ed.  (15  Otto.)    460,  26  L.  Ed.   1067;  Hall 

653;  Philadelphia,  etc.,  R.  Co.  v.  Penn-  v.  Decier,  95  U.  S.    (5  Otto.)    485;   24 

sylvania,  82  U.   S.    (15  Wall.)    232,  21  L.    Ed.    .547:    The   Daniel   Ball,   77     U. 

L.  Ed.  146.  S.    (10  Wall.)    557,   19  L.  Ed.  999. 


^  663] 


T.VXATIOX, 


637 


stated.**  Where  a  statute  required  a  statement  to  be  made  by  the 
chief  manager  of  the  telegi-aph  company,  of  the  entire  number  of 
full-rate  and  half-rate  messages  of  the  company,  and  that  thus  the 
amount  of  taxes  due  should  be  ascertained,  a  tax  upon  certain  of  the 
messafff'S  was  held  unconstitutional;  but  the  law  contained  no  direc- 
tion  requiring  discrimination  in  the  report  between  the  messages  that 
could  be  legally  taxed  and  thnso  that  could  not.  and  the  entire  law 
was  held  inoperative  and  void.*^ 

§  663.     Municipal  tax — compensation — use  of  streets. 

It  has  been  held  in  a  recent  case  that  a  municipal  corporation  may 
impose  a  tax  on  telegTaph  companies  as  a  compensation  for  the  use 
of  its  streets.^*^      The  court  adjudged  that  such  tax  was  neither  a 


^'West.  U.  Tel.  Co.  v.  Com.,  110 
Pa.  St.  405,  20  Atl.  720,  reversed  in 
128  U.  S.  39;  also,  West.  U.  Tel.  Co. 
V.  State  Board,  80  Ala.  273,  60  Am. 
St.  Rep.  99,  reversed,  in  145  U.  S. 
472;  Mobile  v.  Port  of  Mobile,  76  Ala. 
401,   reversed,    in    127   U.    S.   640. 

"West.  r.  Tel.  Co.  v.  Texas,  62 
Tex.  630. 

»City  of  St.  Louis  v.  West.  U.  Tel. 
Co.,  148  U.  S.  92,  13  Sup.  Ct.  Rep. 
485.  In  the  course  of  the  opinion  in 
that  case,  it  was  said:  "And  first 
with  reference  to  the  ruling  that  this 
charge  was  a  privilege  or  license  tax. 
To  determine  this  question,  we  must 
refer  to  the  language  of  the  ordinance 
itself,  and  by  that  we  find  that  the 
charge  is  imposed  for  the  privilege  of 
using  the  streets,  alleys  and  public 
places,  and  is  graduated  by  the  amount 
of  such  use.  Clearly,  this  is  no  priv- 
ilege or  license  tax.  The  amount  to 
be  paid  is  not  graduated  by  the 
amount  of  the  business,  nor  is  it  a  sum 
fixed  for  the  privilege  of  doing  busi- 
ness. It  is  more  in  the  nature  of  a 
charge  for  the  use  of  the  property  be- 
longing to  the  city — that  which  may 
properly  be  called  rental.     'A  tax  is  a 


demand  of  sovereignty;  a  toll  is  a  de- 
mand of  proprietorship.'  State  Freight 
Tax  Case,  15  Wall.  232,  278.  If,  in- 
stead of  occupying  the  streets  and  pub- 
lic places  with  telegraph  poles,  the 
company  should  do  what  it  may  right- 
fully do,  purchase  ground  in  the  va- 
rious blocks  from  private  individuals, 
and  to  such  ground  remove  its  poles, 
the  section  would  no  longer  have  any 
application  to  it.  That  by  it  the  city 
receives  something  which  it  may  use  as 
revenue  does  not  determine  the  charac- 
ter of  the  charge  or  make  it  a  tax. 
The  revenues  of  a  municipality  may 
come  from  rentals  as  legitimately  and 
as  properly  as  from  taxes.  Suppose 
the  city  of  St.  Louis  should  find  its 
city  hall  too  small  for  its  purposes,  or 
too  far  removed  from  the  center  of 
business,  and  should  purchase  or  build 
another  more  satisfactory  in  this  re- 
spect, it  would  not  therefore  be  forced 
to  let  the  old  remain  vacant  or  to  im- 
mediately sell  it,  but  might  derive  rev- 
enue by  renting  its  various  rooms. 
Would  an  ordinance  fixing  the  price  at 
which  those  rooms  could  be  occupied 
be  in  any  sense  one  imposing  a  tax? 
Xor  is  the     character     of    the    charge 


638  TELEGRAPH  AXD  TELEPHOiNE   COMPANIES.  [<§    663 

privilege  tax  nOr  a  license  tax.  There  is  a  reason  for  discriminating 
between  a  tax  imj^osed  on  these  companies  for  the  use  of  streets  in  a 
city  and  a  license  or  privilege  tax,  but  the  distinction  between  the  two 
is  not  verj  clear,  and  unless  there  is  a  clear  understanding  of  the 
distinction  there  is  danger  of  great  abuse  arising  therefrom.  In  de- 
tennining  such  questions,  the  ordinance  providing  for  such  taxing 
power  should  be  resorted  to,  since  from  this  alone  can  it  be  ascer- 
tained as  to  whether  the  tax  is  imposed  as  a  compensation. 

§  664.     City  license  tax  on  telegraph  companies. 

It  is  held  in  Virginia  that  a  city  can  impose  a  license  fee  upon  a 
telegraph  company  or  agency  for  business  done  exclusively  therein, 
not  including  interstate  business  or  business  for  the  government.  And 
it  may  impose  such  license  tax  upon  an  agency  of  interstate  commerce 
such  as  these  companies,  provided  it  is  not  in  excess  of  that  to  which 
the  property  of  the  company  within  the  jurisdiction  of  the  city  would 
be  subject  under  the  ordinary  modes  of  taxation,  but  it  cannot  levy 
a  tax  upon  such  company,  in  excess  of  what  an  ad  valorem  tax  on 
its  property  within  the  city  would  be.  Nor  can  it  make  the  payment 
of  this  tax  a  condition  precedent  to  the  right  to  transact  business.^^ 

§  665.     Special  franchise  taxes. 

A  new  form  of  taxation,  of  very  great  importance,  was  introduced 
in  New  York  state  by  the  statute  of  1899,  making  all  franchises  for 
the  use  of  streets,  highways,  or  public  places,  by  railroads  of  any 
kind,  or  mains,  pipes,  tanks,  conduits,  or  wires  for  any  purpose,  tax- 
able as  special  franchises,  and  to  be  deemed  real  property.  Great 
corporations  have  persistently  fought  it,  until  now,  by  decision  of 
the  United  States  Supreme  Court,  they  are  compelled  to  submit  to 

changed  by  reason  of  the  fact  that  it  is  persons  who  pay  a  certain  amount  of 

not  imposed  upon  such  telegraph  com-  taxes  to  occupy  a  portion  of  the  build- 

panies  as  by  ordinances  are  taxed  on  ing  free  of  rent,  that  would  not  make 

their   gross    income    for   city   purposes.  the  charge  upon  others  for  their  use  of 

In  the  illustration  just  made   in     re-  rooms  a  tax." 

speet  to  a  city  hall,  suppose  that  the  "  Postal  Tel.  Co.  v.  City  of  Rich- 
city,  in  its  ordinance  fixing  a  price  mond,  99  Va.  102,  37  S.  E.  789,  86 
for     the     use  of  rooms,  should  permit  Am.  St.  Rep.  877. 


§    666]  TAXATION.  639 

it.'^  The  main  contention  of  the  corporations  against  the  validity 
of  this  tax  was  that  it  impaired  the  obligation  of  the  contracts  under 
which  these  franchises  were  obtained.  Corporations  which  had  paid 
a  gross  sum  to  obtain  a  franchise,  or  were  required  to  pay  annually 
either  a  fixed  amount  or  a  fixed  percentage  of  their  earnings,  con- 
tended that  such  payments  were  all  that  the  state  could  demand  of 
them  on  account  of  such  franchise.  But  the  court  held  that  the  con- 
tract did  not  provide  that  these  pavonents  were  to  be  in  lieu  of  or 
an  equivalent  or  substitute  for  taxes.  As  the  state  had  not  expressly 
relinquished  the  right  to  tax  them,  what  they  had  paid  for  the  grant 
of  a  privilege  raised  no  implication  of  any  relinquishment  of  the 
power  to  tax  its  value  as  in  case  of  other  property.  The  fact  that  the 
property  was  of  an  intangible  kind  made  it  no  different  in  this  re- 
spect from  a  grant  of  tangible  property,  like  a  tract  of  land.  It 
was  contended  in  one  case  that  the  valuation  of  such  franchise  was 
mere  guesswork  and  speculation,  which  could  not  constitute  process 
of  law,  but  the  court  briefly  disposed  of  this  contention,  holding  that 
it  had  no  merit  where  such  valuation  was  made  by  a  state  board  to 
which  the  owner  of  the  franchise  was  required  to  furnish  a  written 
report,  with  notice  and  hearing  accorded  the  owner  and  review  of 
the  assessment  afforded  by  certiorari.  The  fact  that  some  corpora- 
tions were  previously  subjected  to  annual  payments  "in  the  nature  of 
a  tax,"  under  these  existing  contracts,  and  that  these  w^ere  the  stat- 
utes allowed  to  be  deduced  from  the  special  franchise  tax,  was 
claimed  to  be  a  discrimination  against  other  companies  who  had  paid 
a  lump  sum  for  their  franchises,  and  to  deprive  them  of  their  prop- 
erty without  due  process  of  law,  or  to  deny  them  the  equal  protection 
of  the  laws.  But  it  was  held  that  these  constitutional  rights  were 
not  thus  impaired.  There  has  been  no  case,  to  our  knowledge,  aris- 
ing directly  against  telegraph  or  telephone  companies  on  this  subject, 
but  we  presume  the  same  law  is  applicable  in  that  state  to  these  com- 
panies. 

§  666.     Where  rights  of  being  a  corporation  are  derived  from  the 
United  States. 

In  many  instances,  telegraph  companies  derive  their  privileges  and 
franchises  from  the  United  States;  and  where  they  have  a  situs  in  a 
"  25  Sup.  Ct.  R.  705. 


640  TELEGRAPH   AXD   TEL'EPHONE  C0:MPANIES.  [§    666 

state,  the  latter  may  impose  a  tax  upon  the  property  of  these  com- 
panies notwithstanding  this  fact.  It  is  the  property  of  the  company 
that  is  subject  to  such  tax,  and  not  the  business.  This  is  one  fact 
which  should  be  clearly  understood,  otherwise  great  confusion  will 
most  surely  be  the  result.  That  is,  a  telegraph  company  having  its 
situs  within  a  state  may  have  its  property  in  that  state  taxed  although 
its  franchise  is  derived  from  the  United  States,  and  for  the  purpose 
of  carrying  on  commerce  between  the  states ;  but  the  business  or  oper- 
ation of  such  company  cannot  be  taxed,  since  that  would  be  a  tax 
upon  interstate  commerce. ^^  A  state  tax  upon  a  franchise  derived 
from  the  United  States  is  void  as  an  attempt  to  tax  the  operation  of 
an  instrument  of  the  general  government.^'^ 

§  667.     Interest  when  payment  of  taxes  is  delayed. 

Under  a  statute  providing  that  interest  shall  be  charged  upon  all 
taxes  not  paid  on  or  before  a  specified  date,  a  telegraph  company  is 
liable  for  interest  from  the  date  prescribed,  on  the  amount  of  taxes 
payable  by  it,  notwithstanding  the  fact  that  payment  was  delayed 
pending  the  decision  of  an  appeal  taken  from  the  assessment,  in 
which  a  reduction  of  the  assessment  was  obtained.^^  If  the  taxes 
are  such  as  ought  not  to  be  paid,  the  company  has  a  remedy  for  not 
paying  same.  But  in  order  to  protect  the  company  from  paying  in- 
terest on  the  taxes  for  the  delayed  payment,  the  company  should  ten- 
der the  amount  for  which  it  is  assessed. 

§  668.     Taxes  of  telephone  companies. 

All  that  has  been  said  in  regard  to  the  law  of  taxing  tele- 
graph companies  is  applicable  to  telephone  companies  as  well.  There 
is  nothing  peculiar  in  the  taxation  of  these  companies  differing  from 
that  of  the  taxation  of  other  similar  corporations.  A  message  sent 
by  telephone  from  one  state  into  another  is  commerce  between  the 

"Reagan  v.  Mercantile     Trust     Co.,  "City  of  San  Francisco  v.  West.  U. 

154  U.  S.  413,  14  Sup.  Ct.  Rep.   lOfiO;  Tel.    Co.,    39    Am.    &    Enj?.    Corp.    Cas. 

West.  U.  Tel.  Co.  v.  Att.-Gen.,   125  U.  (Cal.)    601. 

S.   530,  8   Sup.   Ct.  Rep.   961;    City  of  "West.  U.  Tel.  Co.  v.   State,  64  N. 

St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  H.   265.     See  Cooley  on  Tax.    (2  Ed.) 

S.   92,   13   Sup.   Ct.   Rep.   485.  456. 


§    668]  TAXATION.  641 

states,  and  cannot  be  prohibited  or  regulated  by  injunction  in  either 
state  against  persons  or  corporations  engaged  in  sending  such  mes- 
sages, because  they  do  not  pay  the  taxes  assessed  against  them  hy 
such  state,  since  the  effect  of  such  an  injunction,  if  permitted, 
would  utterly  suspend  the  business  of  the  company  and  defeat  all  of 
its  operations  within  the  state  enforcing  such  injunctions. 

T.  &  T.— 41 


CHAPTER  XXVIII. 

TELEGRAPH  AND  TELEPHONE   COMMUNICATIONS   AS 
EVIDENCE. 

§  669.  In  general. 

670.  What  is  a  telegram. 

671.  Letters  and  telegrams — compared. 

672.  Same  continued — admission  of. 

673.  Same  continued — presumption — exceptions. 

674.  Authorship  must  be  proved. 

675.  Proof  of  signature. 

676.  Telegrams  as  declarations  of  sender. 

677.  Telegrams  as  evidence  of  communication. 

678.  Rule  applicable  to  documentary  evidence. 

679.  Primary  evidence — in  general. 

680.  Rule  applicable  to  documentary  evidence  only. 

681.  Rule  applicable  to  telegrams. 

682.  Depends  upon  which  document  is  at  issue. 

683.  Same  continued — contents    of    message    delivered     to     ad- 

dressee. 

684'.  Messages  given  orally  for  transmission. 

685.  Actions  to  recover  statutory  penalties  and  damages. 

686.  Secondary  evidence. 

687.  Proof  of  absence  of  the  original. 

688.  Notice  to  produce. 

689.  What  evidence  admissible  as  secondary. 

690.  Late  improvements  in  telegraphy. 

691.  Same   continued — secondary   evidence. 

692.  Testimony  of  witnesses. 

693.  Secondary  evidence  of  unstamped  contracts. 

694.  When  telegram  need  not  be  produced. 

695.  Declaration  of  employees  subsequently  employed. 

696.  Notice  by  telegram. 

697.  Telephone  communication  as  evidence. 

698.  Identity  of  person. 

699.  When  operator  converses. 

700.  Operator  as  interpreter. 

701.  Oaths  admissible  by  means  of  telephone. 

§  669.     In  general. 

We  shall  now  discuss  the  law  with  respect  to  the  admission  of 
telegrams  as  evidence.  In  assuming-  this  undertaking  we  shall  first 
discuss  the  manner  of  proving  the  contents  of  telegrams,  then  the 

(642) 


<§   G71]  C0MML•^•ICATIo^•s  as  evidk.nce.  043 

admission  of  such  with  respect  to  the  statute  of  frauds,  and,  lastly,  W(j 
shall  speak  of  such  evidence  as  a  privileged  communication.  In  thia 
chapter,  Ave  shall  only  discuss  the  first  of  these  subdivisions,  the  man- 
ner of  proving  the  contents  of  telegrams,  and  leave  the  other  to  be 
treated  in  subsequent  chapters.  In  taking  up  the  subject  which  we 
propose  to  discuss  at  present,  we  shall,  after  discussing  the  subject 
in  general,  speak  of  the  best  proof,  or  such  as  is  termed  primary, 
then  such  as  is  secondary,  after  which  we  shall  say  something  of  tel- 
ephone communications. 

§  670.     What  is  a  telegram. 

Before  entering  into  this  subject,  however,  we  shall  see  what  is 
meant  by  the  tenn  ''telegram."  A  telegram  is  a  message  sent  by  tel- 
egraph ;^  but  under  some  circumstances  a  message  sent  over  a  tele- 
phone line  is  considered  a  telegram.-  In  England,  there  was  a  law  ^ 
which  empowered  the  postmaster-general  to  work  and  maintain  tele- 
graphs for  the  benefit  and  use  of  the  public.  It  was  held  that  con- 
versations over  or  through  telephone  lines  were  "messages"  or,  at  all 
events,  "communications  transmitted  by  telegraph,"  and,  therefore, 
"telegrams"  within  the  meaning  of  the  act ;  and  that,  since  the  com- 
pany made  a  profit  out  of  the  rents,  conversations  held  by  subscribers 
through  their  telephones  were  infringements  of  the  exclusive  privi- 
leges of  transmitting  telegrams  granted  to  the  postmaster-general 
by  those  acts. 

§  671.     Letters  and  telegrams — compared. 

There  is  a  similarity  betAveen  the  moans  of  communicating  news 
by  telegraph  and  l)y  the  postal  system,  with  respect  to  the  proof  of 
the  delivery  of  the  news  to  the  party  addressed.  Where  a  letter  is 
duly  posted,  stamped  ami  addressed  for  transmission  by  means  of 
the  United  States  mail,  it  is  presumed  that  such  letter  reached  its 
destination.  A  telegraph  company  is  engaged  in  a  public  service, 
and  is  duty  bound  to  transmit  and  deliver  all  messages  entrusted  to 
its  care.      ILn-ing  assumed  this  duty,  a  similar  presumption  arises; 

'Int.   Deo.  "Telegraph  Act,  1SG3  and   1869. 

-  G  Q.  B.  Div.  244 :  20  Moak  602. 


644  TELEGRAPH   AXD   TELEPHONE   COMPANIES.  [§    G71 

that  is,  that  the  message  was  delivered.'*  The  presumption  is  that 
letters  properly  directed  and  mailed  were  received,  and  the  same  is 
true  of  telegrams  given  to  a  telegraph  company  for  transmission  and 
properly  addressed,^  and  the  presumption  becomes  conclusive  when 
not  denied.^ 

§  672.     Same  continued — admission  of. 

The  general  rule,  relative  to  the  admission  of  a  letter  in  evidence 
against  the  person  who  is  supposed  to  have  written  it,  is,  that  it  must 
first  be  proved  that  the  letter  was  written  by  such  person  or  by  his 
request  or  authority.  This  may  be  done  by  comparing  the  written 
letter  with  other  writings  of  his,  or  by  any  other  evidence  which  will 
show  that  he  had  it  done  for  himself.  When  it  is  shown  by  compe- 
tent evidence  that  he  is  the  author  of  the  letter,  it  may  then  be  ad- 
mitted in  evidence  against  him.  If,  however,  the  letter  is  in  reply  to 
one  written  to  the  person  against  whom  it  is  to  be  admitted,  it  is  not 
necessaiy  to  prove  the  latter's  signature,  but  all  that  is  necessary  is  to 
prove  that  the  letter  is  one  in  reply  to  one  written  to  such  person  in 
regard  to  the  subject  at  issue.  The  rule  relative  to  the  admission  of 
telegrams,  with  some  exceptions,  is  similar  to  the  above.'^  Thus,  in 
order  to  admit  a  telegram  in  evidence  against  the  sender,  it  must  be 
first  proved  that  he  is  the  author  of  the  telegram,  and  the  same  proof 

*  Perry     v.   German  American  Bank,  Eep.    320,    42    Pac.    301,    44    Pac.    723; 

53  Neb.  89,  73  N.  W.  538,  68  Am.  St.  Perry   v.    German   American   Bank,   53 

Rep.   593;    West.  U.   Tel.   Co.   v.   Call.  Neb.  89,  73  N.  W.  538,  68  Am.  St.  Rep. 

Pub.  Co.,  44  Neb.  326,  27  L.  R.  A.  622,  593. 

48  Am.   St.   Rep.   729,   62   N.   W.   506;  'Oregon   Steamboat   Co.   v.   Otis,   100 

Oregon  S.  S.  Co.  v.  Otis,  100  N.  Y.  446,  N.  Y.  446,  53  Am.  Rep.  221;  Austin  v. 

53  Am.   St.  Rep.  221.     See,  also,  Epp-  Holland,   67   N.   Y.    571,    25   Am.    Rop. 

inger  v.   Scott,   112   Cal.   369,   53   Am.  246;   Eppinger  v.   Scott,    112  Cal.  309, 

St.  Rep.  220,  42  Pac.  301,  44  Pac.  723.  53  Am.   St.  Rep.   220,  42   Pac.   301,  44 

'Com.    V.    Jeffries,    7    Allen    548,    83  Pac.   723. 

Am.  Dec.  717,  and  note.     A  telegram  is  'United    States    v.    Babcock,    3    Dill, 

presumed  to  have  been  delivered  in  the  (U.  S.  571;  Southern  R.  Co.  v.  Howell, 

regular  course  of  business  to  the  per-  135    Ala.    639;    Com.    v.    Burton,    183 

son  to  whom  it  was  directed.     The  fact  Mass.     461,   67   N.  E.   410;      People  v. 

that  the  telegram  was  sent  is  therefore  Hammond,     93  N.  W.    (Mich.)      1084: 

admissible    in   evidence,   and   tends     to  Coupland   v.   Arrowsmith,    18   L.   T.   N. 

prove  that  it  was  received:      Eppinger  S.  755. 
V.  Scott,  112  Cal.     369,     53     Am.     St. 


<§)    673]  COMMUNICATIONS  AS  EVIDENCE.  045 

may  be  resorted  to  in  this  instance  as  that  adopted  for  the  proof  of 
the  aiitliorship  of  letter?.  And  while  it  may  be  admitted  in  evidence 
in  the  absence  of  proof  of  the  sender's  handwriting,  when  it  is  in 
reply  to  a  letter  written  to  such  person,  yet  the  general  rule-  is  that 
it  cannot  be  admitted  in  the  absence  of  such  proof  when  it  is  in  reply 
to  a  telegram  sent  to  such  person.^  The  reason  for  this  rule  may  be 
readily  seen.  Where  it  is  in  reply  to  a  letter,  the  signature  of  the 
author  thereof  may  be  known  by  the  recipient  thereof,  or  it  is  in 
such  a  place  as  to  be  known  by  him ;  but  in  the  case  of  signatures  to 
telegrams,  the  recipient  of  the  latter  has  no  means  of  ascertaining  the 
genuineness  of  such,  more  than  what  the  operator  may  tell  him.  The 
rule,  however,  would  be  different  where  the  message  is  transmitted 
by  means  of  the  late  improvements  made  in  telegraphy,  and  whicli 
will  be  hereafter  discussed.  In  these  cases,  the  same  rule  would  ap- 
ply as  where  the  message  is  in  ro]'>ly  to  a  letter.^ 

§  673.     Same  continued — presumption — exceptions. 

Where  a  letter  has  been  received  from  a  certain  place  in  reply  to 
a  letter  written  to  such  person  at  such  place,  it  is  a  presumption  that 

8  Smith  V.   Easton.   54    Md.    138,    39  in  a   letter  to   any     one     to  effect  it= 

Am.  Rep.  355;   Howley  v.  Whipple,  48  transportation  by  mail,  it  is  absolutely 

X.   H.   487.     See,     also,     Ovenston     v.  necessary  to  disclose  intelligence  to  at 

\\  ilson,  2  C.  &    K.     1,     61     C.    L.     1.  least  two  operators  to  effect  its  trans 

Compare     Thorp  v.   Philbin.   15     Daly  mission     by     telegraph.      Consequently. 

(X.  Y.)    155;   People  v.  Ilanmiond,  93  the  telegraph   offers  far  greater  oppor- 

X.  W.    (Mich.)    1084.  tunity  to  deliver  fraudulent  answers  to 

"  Gray     on     Tel.      135.     This  writer  inquiries  than  the  mail  does.     This  dis- 

says:     "The  principle  upon  which  it  is  tinction  renders  the  principle  at  pres- 

admitted   is   that   the   person   who    an-  ent.  under  consideration  inapplicable  to 

swers  a  letter  is  almost  invariably  the  communications  by  telegraph,  however 

person  to  whom  it  is  addressed.     This,  sound  its  application     to     communica- 

principle,  since  it  is  entirely  independ-  tions     by     mail  may  be  deemed  to  be. 

ent  of  the  question  of  handwriting,  ap-  The     message  written  at  the  place     of 

plies,   apparently,   with   equal   force   to  destination     might     be     admissible     to 

communication  by    telegraph.     But    it  prove  the  authorization  of     the  appa- 

does  not  in  reality  do  so.     It  is  true  rent  sender,   if  it  purported   to  be  an 

that   the   person   who   answers   a    tele-  answer  to     a     letter     proved     to  have 

giaph  message  is  usually  the  person  to  been   properly   mailed   to   him,   the   op- 

whom  it  is  addressed.     It  is  also  true,  portunity      to    deliver    fraudulent      an- 

however,   that   while   it   is   unnecessary  swers   to   inquiries   in   that  form   being 

to   disclose   the    intelligence     contained  comparatively   slight." 


646  TELEGRAPH  AIS'D   TELEPHOKE   COMPANIES.  [^    Q7^ 

he  was  at  that  place  at  the  time  the  letter  was  mailed.^"  A  different 
rule  applies  in  case  of  telegrams.  Thus,  where  a  telegram  was  for- 
warded to  a  person  at  a  certain  place,  and  an  answer  purporting  to 
be  from  him  was  received  in  due  course,  this  is  no  evidence  that  such 
person  was  at  that  place  at  that  particular  time.  "In  the  case  of 
telegraphic  communications,  the  ground  of  belief  amounts  merely  to 
this :  that  the  operator  at  one  end  of  the  line  has  informed  the  oper- 
ator at  the  other  end,  of  the  presence  of  the  sender  of  the  answer.  This 
is  mere  hearsay."  ^^  But  a  receipt  of  a  message  over  the  wires  at  the 
point  of  destination  creates  a  presumption  that  the  message  was  sent 
from  the  office  from  which  it  purports  to  come.-^- 

§  674.     Authorship  must  be  proved. 

As  said  heretofore,  the  authorship  of  a  telegram  must  be  proved 
before  it  can  be  admitted  in  evidence.  If  it  is  a  reply  to  a  letter,  it 
is  enough  to  show  such  fact;  but  if  the  original  telegram  is  intro- 
duced, the  handwriting  of  the  sender  must  be  shown,  or  other  evi- 
dence of  the  genuineness  must  be  given.  ^^  The  authenticity  of  cer- 
tain telegrams  is  sufficiently  proven,  prima  facie  at  least,  where  one 
in  an  agreed  cipher  was  proved  to  a  certainty,  others  were  referred 
to  in  exhibits  of  the  opposite  party,  and  still  others  contained  direc- 
tions to  draw  drafts  which  were  shown  to  have  been  drawn  and 
paid.^*  So,  also,  testimony  of  the  recipient  that  he  received  the  mes- 
sage and  the  admission  of  the  sender  that  it  is  the  message  he  sent, 
is  abundant  proof  of  the  authenticity  of  the  message. ^^  But  where 
the  sender  testifies  that  the  message  was  in  her  own  handwriting  and 
was  sent  by  her,  a  dispatch  taken  from  the  company's  files  of  about 
the  same  date,  purporting  to  be  signed  by  her  and  referring  to  the 
subject-matter  in  question,  is  not  admissible  if  not  in  her  handwrit- 

"1   Green.  Ev.    (14  Ed.),   §  .578.  094;    Chester   v.    State,    23    Tex.   App. 

'^Howley  v.  Whipple,  48  N.  H.  487."  577.     See,  also,  Eppinger  v.  Scott,  112 

"Elwood  V.  West.  U.  Tel.  Co.,  4.5  N.  Cal.  369,  53  Am.  St.  Rep.  220,  42  Pac. 

Y.  549,  6  Am.  Rep.   140.  .301,   44   Pac.   723. 

'» Richie  v.    Bass,    15   La.   Ann.   G68 :  ^^  Oregon  S.  S.  Co.  v.  Otis,  150  N,  Y. 

Burt  V.  Winona,  etc.,  R.  Co.,  31  Minn.  446,  53  Am.  Rep.  221. 

472,   18   N.   W.   289;    Smith  v.   Easton.  « Dunbar  v.  United  States,  156  U.  S. 

54   Md.    138,    39   Am.   Rep.    355;    Rey-  185. 
nold  V.  Hendricks   (S.  Dak.),  94  N.  W. 


<§    675]  COMMUNICATIONS  AS  EVIDENCE.  647 

ing.^*^  A  pa]K'r  oiTcrcil  in  evidence,  purporting  to  contain  a  dispatch 
received  at  a  telegraph  office,  is  not  admissible  as  evidence  when  no 
proof  is  given  that  it  was  in  the  handwriting  of  any  person  employed 
in  the  telegraph  office  where  it  purports  to  have  been  received,  and 
no  other  proof  of  its  authenticity  is  given. ^'^ 

§  675.     Proof  of  signature. 

The  same  manner  of  proof  necessary  to  prove  a  person's  signature 
to  a  letter  is  applicable  in  the  proof  of  signatures  to  telegrams.  Thus, 
evidence  founded  on  mere  comparison  of  handwriting  is  not  admis- 
sible as  a  general  rule,  to  prove  the  genuineness  of  a  signature  ;^^ 
but  it  is  held  that  an  expert  may  give  his  opinion  from  mere  compari- 
son.^^ Testimony  by  comparison  of  handwriting  is  admissible  in 
corroboration  of  previous  testimony.-^  So,  if  the  witness  has  pre- 
\ious  knowledge  of  the  hand,  he  may,  in  corroboration  of  his  testi- 
mony compare  the  writing  with  other  signatures  known  to  be  gen- 
uine.^^  Writings  used  as  standards  in  comparison  of  hands  must 
l)e  proved  to  be  genuine.  So,  letter-press  copies  of  letters  found  in 
the  party's  letter-book,  are  not  admissible  as  standards  of  comparison 
to  prove  the  genuineness  of  a  signature,  but  original  signatures  must 
be  used.2-  In  some  instances,  however,  press  copies  may  be  admitted 
as  secondary  evidence,  but  not  for  comparison.  When  such  is  intro- 
duced, the  witness  should  be  asked  if  it  appears  to  be  in  the  handwrit- 
ing of  defendant ;  then,  by  proving  that  it  is  a  press  copy,  it  would 
follow  that  the  letter  from  which  the  impression  was  made  is  defend- 
ant's also.  He  should  not  be  asked :  "In  whose  handwriting  was 
the  original  of  which  this  purports  to  be  a  copy  ?"  This  question 
elicits  the  opinion  of  the  witness  concerning  the  handwriting  and  the 
necessary  consequence  of  that  opinion,  in  the  same  answer.-^ 

'•Lewis  V.  Havens,  40  Conn.  363.  =«  Baker  v.   Haines,   6   Worthon  234, 

"Richie  v.  Bass,   15  La.  Ann.  668.  36  Am.  Dec.  224. 

"Clark  V.  Wyatt,  15  Ind.     271,     77  =' Shank  v.  Butch.  28  Ind.  21. 

Am.  Dec.  90.  ^  See  48  Am.  Dec.  596,  and  notes. 

"•  Chance  v.  Indianapolis,  etc.,  R.  Co.,  "  Com.   v.   Jeffries,   7   Allen   548,    83 

32  Ind.    474;    Fargry    v.    First     Nat.  Am.   Dec.   712. 
Bank,  66  Ind.   125. 


648  TELEGRAPH  AjVD   TELEPHOXE   COMPANIES.  [<^    676 

§  676.     Telegrams  as  declarations  of  sender. 

"When  a  tclegTam  is  shown  to  have  been  delivered  for  transmission, 
and  it  is  proven  that  the  signature  to  same  is  that  of  the  sender,  such 
telegram  may  be  admitted  as  the  sender's  declaration.-^  Thus,  evi- 
dence that  a  telegram  was  sent  by  the  defendant  to  the  drawee  of 
an  order  which  he  had  given  to  plaintiff,  directing  the  drawee  to 
withhold  a  part  of  the  amount  specified  and  to  pay  the  remainder,  is 
competent  as  tending  to  show  an  admission  bj^  the  defendant  of  in- 
debtedness, at  least  to  the  extent  of  the  amount  of  such  remainder.^ ^ 
The  general  rule  is,  that  a  wife  cannot  testify  in  a  criminal  case 
against  her  husband,  unless  the  charge  is  one  which  has  been  com- 
mitted on  her  by  him.-^  So,  a  telegram  from  a  wafe  of  one  of  the 
defendants  in  an  action  for  conspiracy,  not  written  nor  sent  by  either 
of  them,  is  in  admissible  as  evidence  against  them.  As  the  declara- 
tion of  the  wife,  it  could  not  effect  even  her  husband.-'^ 

§  677.     Telegrams  as  evidence  of  communication. 

Business  affairs  may  be  transacted  by  means  of  telegrams  as  well 
as  by  means  of  correspondence  by  letter,  and  when  there  is  an  action 
arising  over  a  business  transaction,  all  letters  sent  or  received  by  the 
parties  to  the  action  and  in  regard  to  the  matter  at  issue,  may  be 
admitted  in  evidence.  So,  when  it  is  shown  that  telegrams  have  been 
received  in  due  course  from  either  party,  they  may  be  admitted  as 
evidence  of  the  communication  between  the  parties.^ ^  They  may  also 
be  admitted  to  show  the  information  upon  w'hich  the  addressee  may 
have  acted,  where  his  good  faith  or  his  intentions  are  in  question ; 

"  Com.  V.  Jeffries,  7  Allen  548,  83  254.  Telegrams  transmitted  to  plain- 
Am.  Dec.  712.  See,  also,  People  v.  tiff  in  attachment  suits  by  telephone, 
Hammond,  93  N.  W.    (Mich.)    1084.  and  reduced  to  writing  by  the  person 

*  Griggs  V.   Deal,  30  Mo.  App.   152.  who  received  them,   and   in  that  form 

See,  also,  Buford  v.  Samuel,  40  Pa.  St.  acted  upon  by  plaintiff,  are  admissible 

9,  80  Am.  Dec.  545.  as  showing  the  information  upon  which 

"^  State  V.  Jolly,     3     Devereux     and  the  attachment  was  sued  out;  and  it  is 

Battle's  Law  110,  32  Am.  Dec.  656.  not     necessary     that     the      dispatches 

""  Buford    V.    Samuel,    40    Pa.    St.    9,  should  be  verified   by   comparing  them 

80  Am.  Dec.  545.  with   the   originals     on     file  with  the 

'^  Com.   V.   Jeffries,   7   Allen    (Mass.)  telegraph   company.     Deere  v.    Bagley, 

548,    83     Am.     Dec.     712;     Taylor     v.  80  Iowa  197,  45  N.  W.  557. 
Steamboat     Robert  Campbell,  20     Mo. 


<§,    678]  COMMUNICATIONS  AS  EVIDENCE.  G49 

provided  it  is  shown  that  he  read  and  acted  upon  thoni.-^  Thus,  a 
telegram  sent  by  telephone  and  reduced  to  writing  by  the  person  re- 
ceiving it,  may  be  admitted  as  showing  information  on  which  a  plain- 
tiff acted  in  suing  out  an  attachment.  It  is  not  necessary,  in  siicli  a 
case,  that  they  should  be  verified  by  comparing  them  with  the  origi- 
nals on  file  in  the  company's  office;  the  question  in  such  a  case  is, 
not  what  the  original  messages  contained,  but  what  was  contained  in 
them  when  they  reached  the  plaintiff.^*^ 

§  678.     Rule  applicable  to  documentary  evidence. 

It  would  be  foreign  to  the  purpose  of  this  treatise  to  discuss  the 
general  rule  in  relation  to  the  admission  of  evidence  pertaining  to 
documentary  evidence,  but  suffice  it  to  say,  the  general  rule  govern- 
ing such  evidence  is  applicable  in  the  case  of  telegrams.^ ^  As  a  rule, 
however,  in  order  for  the  message  to  be  admitted  against  anyone,  it 
must  be  shown  that  he  is  a  party  to  the  message,  either  as  the  sender 
or  receiver.^-  Thus,  correspondence  by  wire  between  operators  send- 
ing and  receiving  a  message,  which  w^as  not  communicated  to  the 
sender,  is  not  admissible  to  show  that  the  person  to  whom  the  mes- 
sage was  directed  was  absent  from  the  place  of  delivery.^^  So,  also, 
letters  and  telegrams  as  to  the  cancellation  of  an  insurance  policy, 
sent  by  an  insurance  company  to  its  agent  after  a  loss,  are  not  ad- 
missible against  the  insured  in  an  action  on  the  policy.^^     There  may 

^  J.   K.    Arnisby   Co.   v.    Eskerly,    42  mond  v.  Sundburg,  77  loAva  255;  West. 

:Mo.  App.  299.      '  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,   1 

="  Deere  v.  Bagley,  80   Iowa   197,  45  L.   R.   A.   728,    10   Am.   St.   Rep.    772: 

N.  W.  557.  West.  U.  Tel.     Co.     v.     Henderson,  8!) 

='Coni.   V.   Vasburg,    112    Mass.   419:  Ala.   510,   7    So.   419,    18  Am.   St.   Rep. 

Brownfield  v.  Phoenix  Ins.  Co.,  35  Mo.  148. 

App.  54,  26  Mo.  App.  390;   Buford  v.  '^  Powell     v.   Bninner,   86   Ga.     531. 

Samuel,   40    Pa.    St.   9,    80    Am.    Dec.  12  S.  E.  744;   People  v.  Hammond,  93 

545;    Eldridge  v.   Hargreaves,   30  Neb.  N.  W.    (Mich.)    1084. 

638,  46  N.  W.  923;  Hammond  v.  Bee-  »»West.     U.     Tel.  Co.  v.  Cooper,  71 

son,    15    S.   W.    (Me.)    1000:    State   v.  Tex.  507,   1   L.  R.  A.  728,  10  Am.  St. 

Espuozie,  20     Nev.  209,   19   Pac.   677:  Rep.  772. 

International,   etc.,   R.   Co.   v.      Prince.  ^Brownfield  v.   Phoonix  Ins.   Co.,  3."> 

77  Tex.  560;  Powell  v.  Brunner,  86  Ga.  Mo.     App.     54,  26  :Mo.  App.  390.     See. 

531,  12  S.  E.  744;  J.  K.  Armshy  Co.  also,  Larinin  v.  Carley.  114  111.  196. 
V.     Eskerly,     42   :\Io.   App.   299;   Rich- 


650  TELEGRAPH  AND   TELEPHONE   COMPANIES.  [<^    678 

be,  however,  some  exceptions  to  the  rule.  Thus,  where  an  action 
is  brought  to  recover  the  price  of  goods  sold,  a  telegram  countermand- 
ing the  order  for  such  goods,  although  it  was  sent  to  one  not  a  party 
to  the  action,  is  admissible  when  it  appears  that  it  w^as  intended  to 
be  delivered  to  the  sellers  of  the  goods  and  that  it  actually  came  into 
their  possession  and  was  replied  to  by  such  parties. ^^ 

§  679.     Primary  evidence — in  general. 

One  of  the  general  rules  of  the  law  of  evidence  is,  that  the  best 
obtainable  evidence  must  be  adduced  in  court,  or  such  as  is  gener- 
ally termed  primary  evidence.  It  has  been  a  rule  repeatedly  enun- 
ciated by  the  courts  from  the  earliest  times  that  the  highest  degree 
of  proof  of  which  the  case  from  its  nature  is  susceptible  must,  if  ob- 
tainable, be  produced;  or,  in  other  words,  that  no  evidence  shall  be 
adduced  which  presupposes  that  the  party  offering  it  can  obtain  bet- 
ter evidence.^®  "The  object  of  the  rule  of  law,"  as  was  ably  said, 
"'which  requires  the  production  of  the  best  evidence  of  which  the 
fact  sought  to  be  established  is  susceptible,  is  the  prevention  of  fraud ; 
for  if  a  party  is  in  possession  of  this  evidence,  and  withholds  it,  and 
seeks  to  substitute  inferior  evidence  in  its  place,  the  presumption  nat- 
urally arises  that  the  better  evidence  is  withheld  for  fraudulent  pur- 
poses which  its  production  would  expose  and  defeat."  ^'^  This  rule 
does  not  mean  that  the  strongest  possible  evidence  of  the  matter  at 
issue  shall  be  given,  or  that  all  evidence  in  the  case  shall  be  produced ; 
but  it  requires  simply  that  no  evidence  shall  be  given  which,  from  its 
nature,  may  warrant  the  inference  that  there  is  obtainable  by  the 
party  evidence  more  direct,  conclusive  and  original.  In  other  words, 
it  means  that  the  most  direct,  satisfactory  and  conclusive  evidence  ob- 
tainable, and  that  of  the  highest  degree  or  grade,  must  be  produced. ^^ 

"^Eldridge     v.   Hargreavps.     30   Neb.  "  Bagley  v.  McMickle,   9  Cal.  430. 

C38,  46  N.  W.  923.  ^Elliott  v.  Van  Buren,  35  Mich.  49, 

» People  V.  Lambert,  5  Mich.  349,  72  20  Am.  Eep.  668;  West.  U.  Tel.  Co.  v. 

Am.  Dec.  49;  Storm  v.  Green,  51  Miss.  Stevenson,  128  Pa.  St.  442,  18  Atl.  441, 

103;   Clifton  v.  U.  S.,  4  How.  242,   11  15  Am.  St.  Rep.  687,  5  L.  R.  A.  515; 

L.  Ed.  957;     Church     v.     Hubbard,     2  Zang    v.  Wyat,  25  Cal.  551,    56     Pac. 

Cranch     187,     2  L.  Ed.  249;   Ward  v.  565,  71  Am.  St.  Rep.   145. 
Hohn,  58  Fed.  462,  7  C.  C.  A.  314. 


(^    681]  COMMUNICATIONS  AS  EVIDENCE.  651 

§  680.     Rule  applicable  to  documentary  evidence  only. 

This  rule  is  applicable  to  the  admission  of  documentary  evidence 
only,  since  there  is  no  primary  and  secondary  evidence  to  such  as 
may  be  oral.  In  otlier  words,  the  testimony  of  one  witness  cannot 
be  excluded  on  the  ground  that  another  might  give  more  conclusive 
evidence.2^  If  two  parties  claim  that  they  are  familiar  with  the 
circumstances  of  a  particular  transaction,  but  their  statements  in  re- 
gard to  same  are  conflicting,  it  is  within  the  province  of  the  jury 
to  determine  which  statement  is  the  more  correct,  and  it  is  never  the 
duty  of  the  court  to  exclude  the  testimony  of  one  witness  because  it 
may  think  that  of  another  is  better.  Where,  however,  documents  or 
other  written  instruments  exist,  the  contents  of  which  are  in  dispute, 
the  original  should  be  produced  to  prove  such  contents  rather  than  to 
prove  it  by  other  evidence  which  would  be  open  to  the  charge  of  in- 
accuracy.'*'^ In  some  instances,  however,  and  more  particularly  with 
respect  to  proving  telegrams,  parol  evidence  may  be  best ;  which  fact 
we  shall  speak  of  later. 

§  681.     Rule  applicable  to  telegrams. 

The  principal  question  involved  in  the  consideration  of  the  admis- 
sion of  telegrams  as  evidence  to  prove  their  contents  is.  What  is  the 
best  evidence  to  prove  such  facts  ?  The  general  rule  is,  that  the  orig- 
inal telegram,  when  obtainable,  shall  be  produced;  but  it  is  not  an 
easy  matter  in  every  instance  to  determine  what  is  the  original  tel- 
egram. In  such  communications  there  are  two  distinct  documents; 
the  one  delivered  by  a  person  to  the  company  for  transmission,  and 
the  other  delivered  by  the  company  to  the  person  to  whom  it  was  sent. 
The  contents  of  these  two  may  be  identical ;  and  while  the  presump- 
tion may  be  that  they  are  the  same,  yet  it  is  not  the  case  in  every 
instance.  So,  the  presumption  is  not  a  conclusive  one.  It  is  gener- 
ally held  that  this  question  depends  upon  the  further  question  as  to 
who  the  company  represented  as  agent,  the  sender  or  the  recipient  of 

=»  Nelson  v.  Boyston,  3  Mete.  396,  37  20  Am.  Rep.  49,     20     Am.     Rep.  668; 

Am.  Dec.  148;     Elliott  v.     Van  Buren,  Heneky  v.  Smith,  10  Oreg.  349,  45  Am. 

33   Mich.   49,  20  Am.   Rep.   668.  Rep.    143. 

*">  Elliott  V.  Van  Buren,  33  Mich.  49, 


652  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  [<^    681 

the  message  ?  In  other  words,  if  the  person  sending  the  message  take? 
the  initiative  so  that  the  company  is  to  be  regarded  as  his  agent,  the 
message  actually  delivered  at  the  end  of  the  line  is  the  original  and 
primary  evidence ;  but  if  the  person  to  whom  the  message  is  sent  takes 
the  risk  of  its  transmission,  or  is  the  employer  of  the  company,  the 
message  deliverod  to  the  operator  is  the  original.^ ^ 

§  682.     Depends  upon  which  document  is  at  issue. 

The  proper  solution  of  this  question,  we  think,  depends  upon  which 
document  is  at  issue.  In  other  words,  it  depends  upon  whether  the 
contents  of  the  message  delivered  by  the  sender  to  the  company  are 
at  issue,  or  whether  it  is  the  contents  of  the  message  delivered  by 
the  company  to  the  addressee.  The  message  delivered  to  the  com- 
pany is  the  original  whenever  the  words  authorized  to  be  sent  and 
which  were  thereupon  agreed  to  be  transmitted  and  delivered  to  the 
addressee  are  in  issue.^-  It  is  necessary  to  prove  these  words,  when- 
ever a  company  is  sued  for  a  breach  of  contract,^^  that  is,  the  rule 
applies  to  cases  in  which  the  telegraph  company  is  a  party.  So,  also, 
when  the  message  is  offered  as  a  declaration  by  the  sender  in  a  crim- 
inal proceeding,  or  as  an  admission  in  a  civil  action,  the  message  as 
tendered  to  the  company  for  transmission  is  the  original  and  best 
proof.'*  ^ 

§  683.     Same  continued — contents  of  message    delivered    to    ad- 
dressee. 

Whenever  the  words  which  the  company  actually  delivered  to  the 
person  to  whom  the  message  was  sent  are  at  issue,  the  message  de- 
livered to  such  person  is  the  original  and  best  evidence.  So,  when 
the  message  relates -to  a  contract  between  the  sender  and  addressee, 
made  by  means  of  a  telegram,  the  rule  is  that  the  nature  of  the  con- 
tract depends  upon  the  message  delivered  to  the  addressee;  or,  in 
other  words,  to  be  more  clear  on  this  subject,  if  the  addressee  is  un- 
der legal  obligation  to  obey  the  telegraphic  orders  of  another,  the 

"  Saveland  v.  Green,  20  Wis.  431.  '"Coni.  v.  Jeffries,  7    Allen     (Mass.) 

••'Gray  on  Tel.  233  and  note.  548,  83  Am.  Dec.  712.     See,  also,  Mor- 

*^  Gray  on  Tel.  234  and  note.  gan  v.  People,  5!)  111.  58. 


<§    684]  COMMUNICATIONS  AS   EVIDENCE.  653 

message  transmitted  and  delivered  to  him  and  not  what  was  intended 
or  directed  to  be  sent,  contains  the  best  proof  of  such  facts,  and 
shouhl,  Ihcreforc,  be  adduced  in  evidence/^  and  this,  too,  without  ac- 
counting for  the  message  tendered  to  the  company  for  transmission.^® 
This  is  not,  however,  always  the  rule.  If,  for  instance,  the  addressee 
suggest  that  the  telegraph  company  be  used  as  a  means  to  consummate 
the  contract,  this  fact  will  make  the  company  the  agent  for  the  ad- 
dressee, and  tlic  message  which  was  delivered  to  the  company  will  be 
the  original  and  best  evidence.^"  If  the  action  is  based  merely  on 
the  delay  in  delivery,  the  message  delivered  to  the  addressee  is  the 
best  evidence  to  prove  such  fact  without  proof  of  the  message  deliv- 
ered to  the  company,^^  especially  where  there  is  no  dispute  as  to  the 
contents  of  the  two.^^ 

§  684.     Messages  given  orally  for  transmission. 

The  best  evidence  to  prove  the  contents  of  a  message  given  for 
transmission  is  not  always  by  a  written  telegram,  but  in  order  to  ex- 
clude as  a  copy  the  message  transmitted  and  delivered,  it  must  ap- 
pear that  the  message  given  for  transmission  was  in  writing,  since 
there  can  be  no  copy  of  an  oral  communication.^"     Where  it  is  sought 

*^  Illinois. — Anheuser-Busch    r.rc\vin;jr  West     Virginia.   —   ^lorchants'    Nat. 

Assoc.    V.   Heitmocher,    127    111.    652,   4  Bank  v.   Wheeling  First  Nat.   Bank,   7 

L.  R.  A.   575,  21   N.  E.   626,  affirming  W.   Va.   544. 

29  111.  App.  316;   Chicago,  etc.,  R.  Co.  "  Saveland  v.  Green,  40     Wis.     431; 

V.  Russel,  91  111.  298,  33  Am.  Dec.  54;  Oregon     S.  S.  Co.     v.  Otis,   100  N.  Y. 

Matteson  v.  Noys,  25  111.  591.  440,  53  Am.  Rep.  221. 

Kansas. — Barous  v.   Brown,  25   Kan.  *'  Smith   v.   Easton,    54   Md.    138,    30 

414.  Am.    Rep.    355.      See,   alsoj    Pegram  v. 

.¥assac/i  use/ /s.—Niekerson      v.    Spin-  West.  U.    Tel.    Co.,    100    N.   C.    28,   6 

dell,   104  Mass.  25,  41  N.  E.   105.  Am.  St.  Rep.  557,  6  S.  E.  677. 

Minnesota. — Wilson     v.    ]Minncapolis,  ^  Conyors   v.    Postal    Tel.    Cable   Co., 

etc.,  R.   Co.,   31   Minn.   481,    18   N.   W.  92  Ga.  619,   19   S.  E.  253,  44  Am.   St. 

291;   Magie  v.  Herman,  50  Minn.  424,  Rep.   100;   West.  U.  Tel.  Co.  v.  Bates, 

52  N.  W.  909.  36  Am.  St.  Rep.  660.  93  Ga.  302,  20  S.  E.  039;  West.  U.  Tel. 

Neio   Hajnpshire.—Tlowlej   v.    Whip-  Co.  v.  Blanse,  94  Ga.  431,  19  S.  E.  253. 

pie,  48  N.  H.  487.  *»  West.  U.  Tel.  Co.  v.     Fatman,     73 

New    Yorfc.— Thorp     v.    Pliilhin.     15  Ga.  285,  54  Am.  Rep.  877. 

Daly  155.  "Bank     v.    Richardson.    47     N.    C. 

Vermont. — Durkee  v.   Vermont   Cent.  109.     In  this  case,     it     was     held  that 

R.  Co.,  29  Vt.   127.  dots  and   d;ishos  made  on  paper  at  the 


654  TELEGEAPH   AKD   TELEPHONE   COMPANIES.  [§    GS4 

to  show  by  parol  evidence  the  contents  of  a  message  delivered  to 
the  company's  operator,  it  cannot  be  objected  that  thc^  evidence  of- 
fered was  not  the  best  evidence,  unless  it  be  shown  that  the  mes- 
sage delivered  to  the  operator  was  in  writing;  and  since,  as  a  matter 
of  fact,  many  telegrams  are  communicated  orally  by  the  sender  to 
the  operator,  the  court  cannot  conclude,  without  proof,  that  telegrams 
given  to  an  operator  in  any  given  case  were  in  writing.^ ^  The  gen- 
eral rule  would  clearly  be  applicable  where  it  is  sought  to  prove  by 
parol  the  contents  of  a  message  transmitted  and  delivered,  if  it  ap- 
peared that  the  message  transmitted  was  delivered  orally  to  the  re- 
cipient without  being  reduced  to  writing.^^ 

§  685.     Actions  to  recover  statutory  penalties  and  damages. 

In  an  action  against  a  telegraph  company  to  recover  damages  or  a 
statutory  penalty  for  failure  to  transmit  and  deliver  a  message  with 
due  diligence,  the  issue  being  not  as  to  the  contents  of  the  telegram, 
but  as  to  failure  or  delay  in  transmission  and  delivery,  the  message 
actually  delivered  by  the  company  is  admissible  in  evidence  without 
producing  or  explaining  the  absence  of  the  message  delivered  by  the 
sender  to  the  company .'^^  There  was  one  case,  however,  which  held 
that  the  telegram  delivered  to  the  operator  was  the  original  and 
should  have  been  produced.^*  This  case  has  been  later  disapproved.^^ 
But  it  has  been  held  that,  if  in  such  an  action,  the  contents  of  the 
telegram  sent  are  material,  the  loss  by  plaintiff  of  the  telegrams  re- 
ceived will  not  lay  the  foundation  for  introducing  parol  evidence  of 
the  contents  without  accounting  by  notice  to  produce,  or  otherwise, 

telegraph     office     cannot  constitute  the  Conyers     v.    Postal   Tel.   Cable   Co.,   92 

orginal   of  a   message  when   the  words  Ga.  619,  19  S.  E.  253,  44  Am.  St.  Rep. 

of  the  message  are  put  in  writing  by  100;   West.  U.  Tel.  Co.  v.  Fatman,  73 

the  operator.  Ga.   285,   54  Am.   Rep.   877;    West.   U. 

"Terre  Haute,  etc.,  R.  Co.  v.   Stock-  Tel.  Co.  v.   Cline,  8   Ind.  App.  364,  35 

well,   118  Ind.   98,  20  N.  E.  050.     Sec,  K    E.    564.      See,    also,    West.   U.    Tel. 

also,    Bank   v.    Richmond,    47    N.    Car.  Co.  v.  Smith,  26  S.  W.    (Tex.)    216. 

109.  ^*West.   U.   Tol.    Co.   v.   Hopkins,   49 

"Durke  v.  Vermont  Cent.  R.  Co.,  29  Ind.   223. 

Vt.  127.  "'Reliance   Lumber   Co.   v.   West.   U. 

*»West.  U.  Tel.     Co.  v.     Blance,     94  Tel.   Co.,   58   Tex.     394,    44    Am.    Rep. 

Ga.  431,   19   S.   E.   255;    West.  U.  Tel.  020. 
Co.  V.  Bates,  93  Ga.  352,  20  S.  E.  639; 


<^    686]  COMMUNICATIOiVS  AS  EVIDENCE.  655 

for  the  non-production  of  the  telegrams  written  and  delivered  by  the 
sender  for  transmission."'" 

§  686.     Secondary  evidence. 

It  is  a  general  rule  of  evidence  that  when  written  evidence  of  a 
fact  exists,  the  writing  constitutes  the  best  evidence  of  the  fact;  and 
where  the  Avriting  is  not  produced,  parol  evidence  cannot  be  admit- 
ted to  prove  its  contents,  unless  the  absence  of  the  writing  is  satis- 
factorily explained.  In  other  words,  parol  evidence  is  not  admissi- 
ble in  substitution  for  available  written  evidence,  and  the  contents 
of  a  writing  cannot  be  proved  by  parol  evidence.'^"  The  contents  of 
a  letter  may  be  proved  by  secondary  evidence,  where  such  letter,  if 
existing,  Avould  itself  be  admissible.  And  this  is  so  when  the  de- 
struction of  such  letter  is  shown  to  have  arisen  from  misapprehen- 
sion, and  was  without  any  fraudulent  purpose,  though  such  destruc- 
tion was  the  party's  voluntary  act.^^  Such  evidence  must  not  only 
appear  to  be  the  best  secondary  evidence,  but  it  must  be  the  best  legal 
evidence  obtainable  under  the  circumstances.^^  The  rule  which  gov- 
erns the  admission  of  secondary  evidence  of  the  contents  of  docu- 
ments generally,  apply  to  the  admission  of  secondary  evidence  of 
the  contents  of  a  telegraph  message.  Thus,  the  contents  of  a  tele- 
gram cannot  be  proved  by  testimony  of  the  person  to  whom  it  is  sent, 
without  producing  the  original  or  accounting  for  its  absence.^" 

■^West.  U.  Tel.  Co.  v.  Hines,  94  Ga.  83  Ala.  401,,  3     So.     796:     Wliildcn  v. 

430,     20  S.  E.  349,  disapproving     and  :Merchants',  etc.,  Nat.  Bank.  1)4  Ala.  1, 

limiting  Cincinnati,  etc.,  R.  Co.  v.  Des-  38  Am.  Rep.   1. 

brow,  76  Ga.  253.     But  see,  West.  U.  Arizotia. — Yavepai  County  v.  O'Neil. 

Tel.   Co.   V.   Thompson,    18     Tex.     Civ.  29  Pac.  430. 

App.  279,  44  S.  W.  402.  Geor^-ia.— West.  U.  Tel.  Co.  v.  Tlinos, 

■"Newsom  v.  Jackson,  26  Ga.  241,  71  94   Ga.  430,  20   S.  E.   349. 
Am.  Dec.   206;    Boyston     v,     Rees,     8  Indiana. — West.  U.  Tel.  Co.  v.  Hop- 
Pick.  329,   19  Am.  Dec.   326;   Johnson  kins,  49  Ind.  223. 

V.  Arunwino.  42  N.  J.  L.  451,  36  Am.  Mississippi.   —   Williams  v.  Briekill, 

Rep.  527.  37  Miss.  682,  75  Am.  Dec.  88. 

^Tobin  V.  Shaw,  45  Me.  331,  71  Am.  Nebraska.— Yeiser  v.   Gathers.   97   N. 

Dec.   647.  W.  840. 

"•Philipson  v.   Bates,  2   Mo.   116,  22  rea;as.— Prat lier  v.   Wilkins.  OS  Tox. 

Am.  Dec.  444.  187;  West.  U.  Tel.  Co.  v.  Williford.  27 

•"  Alabama.— McCormick     v.    Joseph,  S.  W.  700. 


656  TELEGRAPH  AND  TELEPHO^^E    COMPANIES,  [<^    687 

§  687.     Proof  of  absence  of  the  original. 

As  was  said,  in  order  to  produce  secondary  evidence  of  the  contents 
of  a  message,  it  must  be  shown  by  sufficient  proof  that  the  original 
has  been  lost,  destroyed  or  is  otherwise  not  obtainable.     It  is  not  an 
easy  matter  to  make  a  fixed  rule  by  which  the  admission  of  such 
evidence  is  to  be  governed,  but  the  circumstances  of  each  particular 
case  must  be  considered  in  making  such  rule.     There  must  be  suffi- 
cient proof  adduced  by  the  party  offering  such  evidence  that  the  or- 
iginal has  been  lost  or  destroyed,  and  that  he  has  made  diligent  ef- 
forts to  find  same.^^    Thus,  where  the  employee  of  the  company  testi- 
fied that  he  worked  at  the  office  at  which  the  telegram  was  received, 
that  the  message  could  not  be  found  there,  and  that  under  the  rules 
of  the  company  messages  were  sent  to  the  head  offices  to  be  destroyed 
after  remaining  at  the  receiving  office  for  six  months,  this  is  suffi- 
cient to  show  the  impossibility  of  obtaining  the  original.^-     It  is  not 
competent,  however,  for  the  messenger  of  the  receiving  office,  to  tes- 
tify from  information  that  the  message  filed  with  him  had  been  de- 
stroyed by  the  employees  of  the  head  offices.''^     When  the  employee, 
who,  at  the  time  of  testifying  but  not  at  the  time  of  receipt,  had  pos- 
session of  the  papers  and  books  of  the  office  from  which  the  message 
was  transmitted,  testified  that  none  of  the  messages  forwarded  from 
the  office  on  the  day  on  which  the  message  sent  were  in  the  office, 
and  that  he  supposed  all  such  messages  had  been  destroyed,  as  it  was 
the  custom  to  destroy  them  after  six  months,  the  destruction  of  same 
is  not  established  by  the  testimony  of  such  employee.^'*     While  the 
testimony  of  such  employee  may  prove  the  absence  of  the  message 
from  the  office,  yet  it  would  not  establish  the  destruction  of  it,  which 
could  only  be  done  by  the  officer  causing  the  destruction.^^     It  was 
held  in  one  case,  that  the  addressee  might  testify  to  the  contents  of 
a  message  where  the  sender,  who  was  a  party  to  the  action,  did  not 
deny  having  sent  it  and  where  the  contents  are  set  out  in  the  declara- 

«'  Flint  V.   Kennedy,   33   Fed.   820.  Rep.  221,  14  Abb.  N.  Cas.   (N.  Y.)   388. 

•■-Riordan  v.  Guf^gerty,  74  Iowa  688,  See,   also,   People   v.   Hammond,   93   N. 

39    X.    W.    107;    West.   U.    Tel.    Co.   v.  W.    (Mich.)    1084. 

Collins,  4.5  Kan.  88,   10  L.  R.  A.  .515n.  '=  American  U.  Tel.  Co.  v.  Dougherty, 

2.5  Pae.   187;   Smith  v.  Easton,  54  Md.  SO  Ala.  191,  7  So.  7G6. 

138,  39  Am.   Rep.  355;   Oregon  Steam-  "*  Barons  v.  Brown,  2:i  Kan.  410. 

ship  Co.  V.  Otis,  100  X.  Y.  446,  53  Am.  '-  1   Greenl.   Ev.,   §  84n. 


(^  689]  co>n[UNiCATioNS  as  evidence.  6oT 

tion.'^^     This  is  not  the  rule  where  the  original  is  not  accounted  for, 
but  was  admitted  on  the  ground  of  its  harmlessness. 

§  688.     Notice  to  produce. 

In  order  that  secondary  evidence  may  be  admitted  to  prove  the 
contents  of  a  telegram,  the  rule  is  that  the  party  offering  to  produce 
such  evidence  should,  if  the  original  is  in  the  possession  or  under 
the  control  of  the  adverse  party  to  the  suit,  give  him  sufficient  notice 
to  produce  it.  If  the  telegram  is  in  the  possession  of  a  stranger  to 
the  action,  and  w^ho  is  not  legally  bound  to  produce  it,  the  person 
offering  to  produce  secondary  evidence  of  its  contents  must  have 
served  a  subpoena  duces  tecum  upon  such  stranger.  Where  the  tele- 
gram is  alleged  to  have  been  lost  or  destroyed,  it  must  be  shown,  as 
said,  that  diligent  search  has  been  made  for  the  original.®^  This 
is  the  rule  where  the  telegraph  company  is  not  made  a  party  to  the 
action,  for  the  rule  does  not  apply  where  the  original  message  is  the 
foundation  of  the  action,  and  the  adverse  party  must  know  from  the 
very  nature  of  the  case  that  it  is  charged  with  the  possession  of  it. 
For  instance,  in  an  action  against  a  company  for  the  breach  of  a 
contract  to  communicate  a  message,  the  plaintiff  need  not  give  the 
defendant  notice  to  produce  that  message ;  he  may  immediately  resort 
to  parol  evidence  to  prove  the  contents.^^  This  rule  has  been  con- 
tradicted,^^ but  we  think  that  it  was  wrongly  so. 

§  689.     What  evidence  admissible  as  secondary. 

When  it  is  sufficiently  shown  that  the  original  telegram  cannot  be 
produced  to  prove  its  contents,  the  question  which  then  presents  it- 
self is,  What  evidence  should  be  produced  as  being  the  next  best  evi- 
dence ?  As  said  elsewhere,  when  the  original  or  best  evidence  cannot 
be  produced,  the  next  accessible  evidence  to  prove  such  fact  must  be 
produced. "^"^     If  the  company  preserves  letter-press  or  other  copies  of 

"Williams  v.  Brickell,  37  Miss.  682.  « Reliance     Lumber  Co.  v.   West.  U. 

75     Am.  Dec.  88.     See.     also.     Oregon  Tel.  Co.,  58  Tex.  394,  44  Am.  Rep.  620. 

Steamship  Co.  v.   Otis.   100  N.  Y.  446.  »»We3t.  U.  Tel.   Co.  v.  Hopkins,     49 

53   Am.   Rep.  221.  Tnd.  223. 

"Stephen's     Dig.     of    Ev.,    arts.  67,  "  Philipson  v.  Bates,  2  Mo.   116,  22 

68;   Matteson  v.  Xoyes,  25  111.  591.  Am.  Dec.  444. 

T.  k  T.— 42 


658  TELEGRAPH  AND   TELEPHO^sE   COMPANIES.  [§    689 

the  original  telegram  which  it  receives  and  delivers,  it  seems  that 
this  would  be  the  next  best  evidence."^  ^  The  office  book  of  these  com- 
panies is  not,  however,  a  shop  book  or  an  account  book,  or  any  rec- 
ord recognized  by  law  as  evidence,  and  where  it  only  contains  a  mem- 
orandum of  the  terms  of  the  original  message,  it  can  only  be  used 
to  refresh  the  memory  of  the  witness,  where  such  usage  is  the  prac- 
tice. If  a  copy  of  the  message  is  kept  by  authority  of  the  company 
at  either  end  of  the  line,  or  by  a  connecting  company,  it  seems  that 
it  would  be  admissible  as  secondary  evidence.  A  telegram  written 
at  one  end  of  the  line  may  be  introduced  as  evidence  at  the  other  end, 
it  seems,  in  two  different  ways :  It  may  be  introduced  as  the  original, 
and  when  this  is  the  case  it  must  be  proved  to  be  the  original  f^  or, 
where  the  contents  of  the  message  delivered  to  the  addressee  are  at 
issue/^  it  may  be  introduced  as  a  fact  relative  to  the  fact  in  issue. 
.It  is  part  of  the  contract  of  transmission  that  the  message  will  be 
transmitted  and  delivered  in  the  exact  words  in  which  it  was  re- 
ceived from  the  sender;  and  when  the  issue  arises  on  the  incorrect- 
ness of  the  transmission,  the  original  message  must  be  introduced  to 
prove  such  incorrectness.  It  was  held  in  one  case  that  on  proof  of 
the  destruction  of  the  original  telegram,  an  uncertified  copy  was  ad- 
missible on  a  trial  of  forgery  to  show  that  the  respondent  at  a  cer- 
tain time  knew  of  a  material  fact  therein  stated.'^^  Where  the  issue 
is  as  to  whether  the  message  Avas  ever  delivered  at  all  to  the  addressee, 
the  receipt  of  the  message  by  such  person  is  the  best  evidence. 

§  690.     Late  improvements  in  telegraphy. 

We  do  not  think  that  the  late  improvements  made  in  telegraphy 
will  change  the  law  heretofore  discussed,  in  any  particular,  and  es- 
pecially do  we  think  this  is  true  with  respect  to  the  rules  of  evi- 
dence herein  treated.  Of  course,  in  some  instances  the  company  will 
not  be  liable  for  errors  made  in  the  transmission  by  means  of  the  late 
improvements,  where  it  would  otherwise  be,  should  the  message  have 

"Anglo-American  Packing,  etc.,    Co.  "Com.   v.   Jeffries,   7   Allen    (Mass.) 

V.   Com.,   31    Fed.   313;    Durkee   v.   Vt.       548,  83  Am.  Dec.  712. 
C.  R.  Co.,  29  Vt.  1277.  ^*  State  v.  Hopkins,  50  Vt.  316. 

"Barons     v.   Brown,   25   Kan.     410; 
Smith  V.  Easton,  54  Md.  138. 


§    691]  COMMUNICATIONS  AS  EVIDENCE.  659 

been  transmitted  by  the  old  method.  What  we  mean  is  this:  there 
is  a  very  late  invention  on  the  method  of  transmitting  news  over  tel- 
egraph lines,  by  means  of  which  the  sender,  instead  of  the  operator, 
virtnally  sends  or  transmits  the  message  himself.  In  other  words, 
he  writes  the  message  himself  and,  at  the  same  time,  by  means  of  an 
electric  connection  of  the  pencil  used  by  him  with  another  at  the  re- 
ceiving office,  an  exact  copy  is  reproduced  at  the  latter  office.  A  still 
later  improvement  is  where  typewriters  are  connected  instead  of  an 
electric  connection.  Xow  where  these  goods  are  in  good  working 
order,  or  when  the  company  is  not  negligent  in  keeping  them  in  suit- 
able condition,  it  will  not  be  liable  for  errors  made  in  the  transmis- 
sion of  news,  when  the  sender  voluntarily  operates  the  machine  him- 
self. The  wireless  telegraphy  is  operated  wholly  by  experienced  em- 
ployees of  the  company  and  the  same  liabilities  are  imposed  on  them 
for  errors  made  as  those  imposed  on  the  ordinary  wire  telegraph  com- 
panies. A  discussion  of  this  subject  may  seem  inappropriate  at  this 
place,  but  something  was  desired  to  be  said  about  it  and  we  decided 
it  would  be  as  well  to  speak  here  of  it  as  in  any  other  place. 

§  691.     Same  continued — secondary  evidence. 

With  respect  to  the  proof  of  the  contents  of  telegrams  sent  by 
means  of  the  w^ireless  telegraph,  the  same  rule  of  evidence  is  applica- 
ble as  in  the  proof  of  telegrams  sent  by  the  ordinary  telegraphic 
method.  When  it  is  sent  by  one  of  the  other  methods  discussed  in 
the  preceding  section,  the  original  is  the  telegram  written  by  the 
sender  at  the  transmitting  office,  when  the  contents  of  the  telegram 
delivered  to  the  company  are  attempted  to  be  shown.  If  this  cannot, 
however,  be  produced,  the  next  best  evidence  to  prove  such  fact,  as 
we  believe,  would  bo  the  roprodueod  copy  at  the  other  end  of  the  line. 
If,  however,  it  is  required  that  a  copy  of  the  telegi'am  be  kept  at  tht- 
transmitting  office,  there  is  a  doubt  in  our  minds  as  to  w^hetlier  this 
or  the  reproduced  copy  at  the  other  end  of  the  line  would  be  the  best 
evidence;  but  w^e  are  inclined  to  think  that  if  the  contents  of  the  tel- 
egram as  delivered  for  transmission  are  at  issue,  the  copy  at  the 
transmitting  office  would  be  the  best  evidence  to  prove  such  fact.  In 
other  respects,  the  admission  of  telegrams  as  evidence  is  the  same  as 
the  admission  of  such  as  are  sent  in  the  ordinary  ways,  and  which 
has  alreadv  been  discussed. 


660  TELEGRAPH  AND  TELEPHONE   COTSIPANIES.  [<§>    692 

§  692.     Testimony  of  witnesses. 

When  the  original  cannot  be  produced,  the  addressee  of  the  tele- 
gram may  testify  that  it  was  received  by  him ;  however,  if  it  is  not 
shown  by  the  admission  of  such  person  that  he  did  receive  it,  sucli 
fact  must  be  shown,  either  by  his  written  receipt  for  the  delivery — 
if  he  gave  one — or  by  the  oral  testimony  of  some  one  present  when 
it  was  delivered.  But  if  there  is  proof  that  the  message  was  prop- 
erly placed  upon  the  wires,  and  that  the  person  to  whom  the  message 
was  sent  was  present  at  the  place  of  destination,  it  has  been  held 
that  a  presumption  of  delivery  then  arises.' °  This  presumption  is 
not  conclusive,  however,  but  the  burden  is  cast  upon  the  plaintiff  to 
show  that  it  was  not  delivered  to  him.  This  may  be  proved  by  par- 
ties who  were  with  him  when  he  was  in  the  office,  and  who  could  have 
seen  the  delivery  if  such  had  been  made. 

§  693.     Secondary   evidence   of   unstamped   contracts. 

It  has  been  held  that  if  a  written  instrument  which  is  the  founda- 
tion of  the  action  is  not  stamped,  and  is  excluded  as  evidence  for  that 
reason,  the  contract  evidenced  by  such  written  instrument  cannot  be 
proved  by  parol."*^  We  presume  the  same  rule  would  apply  to  ac- 
tions upon  which  telegrams  are  the  foundation.  In  an  Alabama  case 
it  was  held  that  the  company  would  not  be  liable  for  negligently 
transmitting  an  unstamped  telegram. '^'^  But  if  the  telegram,  not  be- 
ing the  foundation  of  the  action,  is  offered  in  evidence  by  a  person 
not  a  party  to  it,  as  an  admission  of  the  adverse  party  touching  a 
matter  at  issue,  the  fact  that  it  is  not  stamped  is  no  ground  for  ob- 
jecting to  its  admission, '^^  If  suit  is  brought  upon  the  original  con- 
sideration for  which  an  unstamped  note  is  given,  the  note  is  admissi- 
ble in  evidence  to  explain  the  testimony  of  a  witness  in  reference  to 
the  date  of  a  settlement  between  the  parties,  and  the  amount  found 
ducj^  and  an  imstamped  telegram  containing  such  facts  may  be  ad- 

«Com.   V.   Jeffries,   7   Allen    (Mass.)  ^"Mobile,  etc..  R.  Co.  v.  Edwards,  46 

.548,  83   Am.   Dee.   712;    U.   S.  v.  Bab-      Ala.  267. 

cock,  3  Dill.   .571.     See,  also,  State  v.  "West.  U.  Tel.  Co.  v.  Young.  36  So. 

Hopkins,   .50   Vt.   316;    Greenl.   on   Ev.,       374. 

§  40.  'sjjeig  V   Hillman,  25  Ohio  St.  180. 

^°  Israel  v.  Kedding,  40  111.  362. 


^    694]  OOM.ML'MCATIOXS  AS  EVIDEKCK.  GGl 


mitted  to  prove  such.     This  discussion  is  of  little  importance  just 
now,  as  the  revenue  stamp  law  has  been  repealed.* 


so 


§  694.     When  telegram  need  not  be  produced. 

Where  a  written  instrument  is  only  an  evidence  of  a  fact  in  issue, 
it  need  not  be  produced,  nor  need  its  absence  be  satisfactorily  ac- 
counted for  before  other  evidence  of  that  fact  is  admissible.^ ^  Thus, 
a  payment  of  money  may  be  proved  by  oral  testimony,  without  ac- 
counting for  the  absence  of  the  written  receipt.^-  Applying  this  rule 
to  telegraphic  messages,  it  follows  that  when  the  message  is  merely 
an  evidence  of  a  fact  in  issue,  it  need  not  be  produced  nor  its  absence 
accounted  for,  before  oral  testimony  may  be  admitted  to  prove  such 
fact.  Thus,  as  has  been  seen,  the  contents  of  the  telegram  delivered 
to  the  company  for  transmission,  may  be  proved  by  oral  testimony 
only  when  its  absence  has  been  satisfactorily  accounted  for,  yet  the 
absence  of  such  message  need  not  be  satisfactorily  accounted  for  be- 
fore the  introduction  of  oral  testimony  of  the  genuineness  or  authori- 
zation of  the  sender.  So,  the  delivery  of  a  telegram  to  the  person 
addressed  may  be  proved  orally  without  accounting  for  the  written 
receipt  for  that  delivery.  So,  also,  where  the  action  is  for  a  delay 
in  the  delivery  of  a  message,  oral  testimony  may  be  introduced  to 
show  such  delay,  without  accounting  for  the  message  actually  de- 
livered, and  upon  which  is  noted  the  exact  time  of  delivery.^^  When 
a  telegram  has  been  altered  in  transmission,  whereby  the  sender  suf- 
fers an  injury,  he  may  prove  by  oral  testimony  that  the  authorized 

^  Act  of  Congress,  Jum^  13.  1808.  and  dary   but   primary:    \Yest.   U.   Tel.   Ca 

1001.  V.   Cline,  8     Ind.     App.   364,  35   X.  E. 

**Greenl.    on    Ev.,    §90;    Taylor    on  .")(i4.     Where  copies  of  telegrams   relat- 

Ev.    (7  Ed.),   §§  415,  416.  ing  to  a   matter  about  which   tht-re   is 

®^  Jacobs  V.  Lindsey,   1   East.  4G0.  no  controver.sy  have  been  filed  on  a  no- 

^  Where     the  telegram   is  not     itself  tice.  it   is  proper  to  permit  the  opera- 

the  foundation   of   the   action,   but   the  tor  who  received  the  telegram  to  state 

failure  to     transmit     and     deliver     it  them,  when   such     statement     does  not 

within  a  reasonable  time  is  the  gist  of  materially  differ  from  the  copies  filed, 

the  controversy,  the  fact  that  the  mes-  International,  etc.,  I\.  Co.  v.  Prince.  77 

sage  was  delivered  for  transmi-ssion  is  Tex.    500.    14    S.    \V.    171.    19    Am.    St 

a   substantive     fact     necessary     to     be  Eep.    795:    International,    etc..    R.    Co. 

])roved.  and  the  last  rule  does  not  aj)-  v.  Cock,  14  S.  W.    (Tex.)   242. 
ply,   and    parol   evidence    is  "not   secon- 


662  TELEGRAPH  A^^D  telepho:n^e  compakies.  [§  694 

message  was  not  delivered  without  accounting  for  the  message  as  de- 
livered, but  if  the  addressee  should  institute  the  action  for  injuries 
sustained  by  acting  on  a  misinformation,  he  should  produce  the  al- 
tered message,  or  give  good  reasons  for  its  absence. ^^ 

§  695.     Declaration  of  employees  subsequently  employed. 

The  general  rule  of  agency  is,  that  the  representations  and  admis- 
sions of  agents  bind  the  principal  only  when  they  are  made  while  the 
agent  is  acting  within  the  actual  or  apparent  scope  of  his  author- 
ity.^^ It  is  also  well  settled  that  the  declarations  concerning  a  fact 
in  dispute  are  admissible  as  part  of  the  res  gestae  only  when  they 
explain  and  are  contemporaneous  with  such  fact  and  are  made  with- 
out any  preparation.^^  In  accordance  with  this  rule,  where  a  tele- 
graph company  is  being  sued  for  a  breach  of  contract,  the  subsequent 
acts  and  declarations  of  the  company's  agent,  unconnected  with  the 
performance  of  the  contract,  are  not  admissible. 

§  696.     Notice  by  telegram. 

Where  a  statute  requires  notice  to  be  given  in  writing,  it  has  been 
held  that  such  notice,  sent  by  means  of  a  telegram,  was  a  sufficient 

**  Gray  on  Tel.,  §  134.  The  author  duced  or  its  absence  satisfactorily  ac- 
gives  the  following  for  the  reason  of  counted  for  before  oral  testimony  is 
the  rule:  "The  delivery  of  an  altered  admissible.  This  distinction  is  due  to 
message  by  a  telegraph  company  causes  the  following  cause:  In  the  former 
at  times  two  distinctly  different  losses.  action,  the  question  in  issue  is  whether 
It  injures  the  sender,  in  depriving  him  the  correct  message  was  delivered;  in 
of  the  benefit  that  he  would  have  de-  the  latter,  what  was  the  correct  mes- 
rived  through  the  due  and  correct  com-  sage  delivered.  In  the  former,  the  con- 
munication  of  his  message;  it  injures  tents  of  the  delivered  message,  what- 
the  receiver,  in  causing  him  to  act  to  ever  they  may  be,  are  simply  evidence 
his  detriment  upon  an  altered  message,  that  the  correct  message  was  not  de- 
In  an  action  for  the  former  injury,  the  livered ;  in  the  latter,  they  are  them- 
fact  that  the  authorized  message  was  selves  to  be  proved,  since  the  action 
not  delivered  may  be  proved  by  oral  is  based  upon  the  exact  difference  be- 
testimony,  without  accounting  for  the  tween  the  contents  of  the  message  de- 
absence  of  the  delivered  message,  livered  and  those  of  the  message  au- 
showing   the   exact   alteration.      In   an  thorized." 

action  for  the  latter  injury,  however,  "Story  on  Agency,  §§   134-137. 

the    delivered    message    must    be    pro-  ^^  Best  oh  Ev.    (7  Ed.),   §  495. 


<^    697]  COMMUNICATIONS  AS  EVIDENCE.  663 

compliance  with  such  statiite.^'^  Thus,  where  the  clerk  adjourns  court 
in  accordance  to  an  order,  sent  hy  means  of  a  telegram,  it  may  be 
held  a  sufficient  compliance  with  a  statute  requiring  notice  to  be  in 
writing.®^  But  a  notice  conveyed  by  means  of  a  telephone  is  a  ver- 
bal one  and  is,  therefore,  insufficient  under  a  statute  requiring  notice 
to  be  in  writing.^^  This  is  the  holding  both  in  the  state  and  federal 
courts,  and  is  also  the  ruling  in  the  English  courts.®*^ 

§  697.     Telephone  communication  as  evidence. 

Conversations  carried  on  by  means  of  a  telephone  do  not  differ  in 
their  essential  characteristics  from  those  carried  on  verbally.^ ^  The 
only  apparent  difference  is,  that  the  parties  conversing  are  further 
apart;  there  is  generally  no  difference  in  the  tone  of  their  voices. 
The  telephone  is  merely  a  medium  by  which  they  are  brought  to- 
gether in  voice,  although  far  apart  in  person.  The  rule  of  evidence 
with  respect  to  the  admission  of  oral  statements  made  in  an  ordinary 
conversation  is  generally  applicable  to  conversations  of  this  na- 
ture.'^-  Thus,  an  acknowledgment  of  a  deed  made  to  a  notary  over 
a  telephone  was  held  valid,  the  identity  of  the  party  making  the  ae- 

"  Georgia.— West.   U.     Tel.     Co.     v.  ^  Sehofield    v.    Horse    Spring    Cattle 

Bailey,  115  Ga.  725,  42  S.  E.  89,  61  L.  Co.,   65   Fed.   433,   testing  stat.,   §   672. 

R.   A.   933n    (notice   of  writ   of   certio-  V.  S.  Rev. 
rari).  »°Ex   parte    Apelir,    35  S.  Car.    417: 

Illinois. — Morgan   v.   People,     59   111.  South   Carolina   Code   of   Civil    Proced- 

58.  lire,  §  408;      Schofield  v.  Horse  Spring 

Indiana. — Kaufman      v.     Wilson,    29  Cattle  Co.,  65  Fed.  433. 
Ind.  504.  "Young  v.   Seattle  Transfer  Co.,   33 

loua. — State    v.  Holmes,     56     Iowa  Wash.    225,   74   Pac.   375,    99   Am.    St. 

588,  9   N.  W.   894,  41   Am.  Rep.   121.  Rep.  942,  63  L.  R.  A.  988. 

yeio  Jersey. — Cape  May,  etc.,  R.  Co.  ^  Globe  Printing  Co.  v.  State,  23  Mo. 

V.  Johnson,  35  N.  J.  Eq.  422.  App.  451;   People  v.  Ward,     3     N.     Y. 

United  States. — Schofield     v.     Horse  Grim.  483;   Young  v.   Seattle    Transfer 

Spring  Cattle  Co.,  05  Fed.  433.  Co.,  33  Wash.  225,  74  Pae.  375,  99  Am. 

Enffland.—ilaywood  v.   Wait,    18   W.  St.  Rep.  942,  63  L.  R.  A.  988;  ShaAvyer 

R.  205;  Tomkinson     v.     Cartledge,     22  v.  Chamberlin,  113  Iowa  742,  84  X.  \A'. 

Alb.  L.  J.  1231;  In  re  Bryant,  4  ch.  D.  061,  86  Am.    St.    Rep.    41.     See,    also. 

98,  35  L.   7  U.  S.  489,  25  W.  R.  230;  Gait  v.  Woliver,  103  111.  App.  71;  Da^ 

Ex.  p.  Langley,  13  Ch.  D.  110,  28  W.  menville  v.  Leonard.  8  Ohio  Civ.  Dec. 

R.   174.  735,  15  Ohio  Civ.  Ct.  686;   Southwork 

**Stato    v.    Holmes,    56    Iowa    588,    9  Nat.  Bank  v.  Smith,  21   Pa.  Co.  Ct.   1, 

X.   W.   894,  41   Am.   Rep.   121.  7   Pa.  Dist.   182. 


664 


TELEGRAPH  AND  TELEPHONE   COMPANIES. 


[§  69- 


knowledgnient  being  clear.^^  In  a  criminal  case,  where  a  witness  tes- 
tifies that  he  called  up  a  certain  person  over  the  telephone  and  rec- 
ognized his  voice  in  talking  to  him,  he  may  give  in  evidence  the  com- 
munication which  the  other  party  made  to  him.''* 

§  698.     Indentity  of  person. 

In  order  for  the  rule  to  hold  good,  the  identity  of  the  person 
must  be  shown  by  the  party  offering  to  produce  such  communication 
as  evidence.  This  may  be  done  by  direct  or  circumstantial  evidence, 
and  it  is  not  necessary  that  the  voice  of  either  person  be  recognized, 
but  if  the  identity  of  the  person  conversing  be  shown,  this  will  be 
sufficient.^^  The  identity  of  the  person  may  be  shown  by  a  person 
who  had  a  previous  conversation  wath  the  defendant  in  a  similar 
manner  ;^°  but  the  plaintiff  cannot,  in  support  of  his  statement  of 


"Banning  v.  Banning,  80  Cal.  271, 
22  Pac.  210,  13  Am.  St.  Rep.  156. 

"People  V.  Ward,  3  N.  Y.  Crim. 
483;  Young  v.  Seattle  Transfer  Co.,  33 
Wash.  225,  74  Pac.  375,  99  Am.  St. 
Rep.  942,  63  L.  R.  A.  988.  See  note  92 
for  further  cases. 

»'  In  Young  v.  Seattle  Transfer  Co., 
33  Wash.  225,  74  Pac.  375,  99  Am.  St. 
Rep.  945,  63  L.  R.  A.  988.  The  court 
said:  "When  material  to  the  issue, 
communication  through  the  medium  of 
the  telephone  may  be  shown  in  the 
same  manner,  and  with  like  effect  as 
conversations  had  between  individuals 
face  to  face,  but  the  identity  of  the 
party  sought  to  be  charged  with  a  li- 
ability must  be  established  by  some 
testimony,  either  direct  or  circumstan- 
tial. It  is  not  always  necessary  that 
the  voice  of  the  party  answering,  or  of 
either  party,  for  that  matter,  be  recog- 
nized by  the  other  in  such  conversa- 
tions, but  the  identity  of  the  person  or 
persons  holding  the  conversation,  in  or- 
der to  fix  a  liability  upon  them  or 
their  principals,  must  in  some  manner 
be  shown.  To  hold  parties  responsible 
for  answers  made  by  unidentified   per- 


sons in  response  to  call  at  the  tele- 
phone from  their  ofiices  or  places  of 
business  concerning  their  affairs,  opens 
the  door  for  fraud  and  imposition,  and 
establishes  a  dangerous  precedent, 
which  is  not  sanctioned  by  any  rule  of 
law  or  principle  of  ethics  of  which  we 
are  aware.  A  party  relying  or  acting 
upon  a  communication  of  that  charac- 
ter takes  the  risk  of  establishing,  the 
identity  of  the  person  conversing  with 
him  at  the  other  end  of  the  line." 

°«In  the  case  of  Globe  Print.  Co.  v. 
Stahl,  23  Mo.  App.  451,  the  court 
said:  "The  sole  question  which  arises 
upon  the  record  is  whether  the  court 
erred  in  admitting  evidence  of  a  con- 
versation heard  through  a  telephone 
between  the  plaintiff's  bookkeeper  and 
a  person  who  answers  to  the  defend- 
ant's name.  The  bookkeeper  testifies 
that  he  called  up  by  telephone  to  the 
general  office  of  the  Bell  Telephone 
Company  for  the  defendant's  number, 
and  was,  by  the  central  office,  con- 
nected therewith;  that  the  list  of  the 
telephone  company  showed  that  the 
(Icfondant  had  two  telephones,  one  at 
his        luidcrtaking      establishment      on 


§  698] 


COMMUNICATIONS  AS  EVIDENCE. 


66; 


such  conversation,  prove  that  he  repeated  at  the  time  to  a  third  per- 
son the  answer  received  over  a  telephone.""  It  is  true  that  a  party 
may  be  misled  by  a  conversation  over  a  telephone.  The  acts  and  ex- 
pressions of  the  person  talking  may  be  often  followed  in  ascertaining 
what  he  means,  and  this,  of  course,  cannot  be  considered  while  com- 
municating by  means  of  the  telephone.  But,  in  an  ordinary  and 
natural  conversation,  the  identity  of  the  person  may  be  established 
by  means  of  hearing  such  person  talk,  or  other  circumstances, 
quite  as  readily  though  possibly  not  as  certainly  as  if  he  had  seen 
such  person.^^  The  fact  that  the  witness,  who  testifies  to  a  conver- 
sation between  himself  and  another,  did  not  recognize  the  other's 
voice  does  not  affect  the  admissibility  of  his  evidence  but  only  its 
weight.^^  The  same  rule  applies  to  a  case  where  the  witness,  in  an 
action  against  a  carrier,  testifies  that  he  demanded  the  goods  in  ques- 
tion from  the  defendant's  agent,  throndi  tlie  telephone,  but  that  lie 


Franklin  avonue,  in  the  city  of  St. 
Louis,  and  the  other  at  his  livery  sta- 
ble, on  Olive  street;  that  witness  was 
not  certain  which  number  he  called, 
but  that  his  best  recollection  was  that 
it  was  the  Olive  street  number;  that 
there  was  an  answer  from  the  de- 
fendant's number,  to  tho  telephone 
call:  that  he  (the  witness)  did  not 
know  whose  voice  it  was,  and  does  not 
know;  that  the  witness  did  not  know 
the  defendant's  voice  and  did  not  know 
the  defendant,  but  that  he  asked, 
through  the  telephone,  if  that  was 
Stahl  (the  defendant)  and  the  answer 
was  'Yes.'  The  witness  was  then  asked 
to  give  the  conversation  then  had 
through  the  telephone  with  the  party 
answering  the  call.  In  response  to  this 
question  the  witness  testified,  against 
the  objection  of  the  defendant,  'that 
he  asked  why  defendant  did  not  pay 
the  bill  for  which  this  suit  was 
brought,  and  that  tlie  party  answer- 
ing said,  "All  right :  I  will  attend  to 
the  matter  about  the  first  of  the 
month.'"  '     A  previous  witness  had  tes- 


tified for  the  plaint ifT  to  a  conversa- 
tion through  the  telephone  in  a  sim- 
ilar manner  with  the  defendant,  whose 
voice  the  former  witness  identified. 
The  court  ruled  that  the  testimony 
was  admissible. 

"German  Savings  Bank  v.  Citizens' 
Nat.  Bank,  101  Iowa  530,  70  N.  W. 
769,  03  Am.  St.  Rep.  399.  See.  also, 
ilissouri  Pac.  R.  Co.  v.  Heibenheimer, 
82  Tex.  195,  27  Am.  St.  Rep.  S61 : 
Cent.  U.  Tel.  Co.  v.  Falley,  11«  Tnd. 
194,   10  Am.   St.  Rep.   135. 

°*Shawyer  v.  Chamberlain,  113  Iowa 
742.  84  X.  W.  661,  86  Am.  St.  Rep. 
411;  Wolf  V.  Missouri  Pac.  R.  Co..  97 
Mo.  473,  3  L.  R.  A.  539,  10  Am.  St. 
Rep.  331.  11  S.  W.  718;  Sullivan  v. 
Kuykendall,  82  Ky.  483,  56  Am.  Rep. 
901.  See  German  Savings  Bank  v.  Cit- 
izens' Nat.  Bank,  101  Iowa  530,  63  Am. 
St.  Rep.  399,  70  N.  W.  769. 

»"  Wolf  V.  Missouri  Pac.  R.  Co.,  97 
Mo.  473,  3  L.  R.  A.  539.  10  Am.  St. 
Rep.  331 ;  Globe  Print.  Co.  v.  Stahl. 
23   Mo.  App.  451. 


666 


TELEGRAPH  AND  TELEPHONE   COMPANIES. 


[§  698 


did  not  remember  the  name  of  the  agent  on  whom  he  made  the  de- 
mand ;  ^^'^  or,  at  which  office,  where  the  defendant  had  two,  he  had 
called.  ^°i 


§  699.     When  operator  converses. 

Where  two  parties  desire  to  communicate  by  means  of  a  telephone, 
but  on  account  of  inexperience  in  the  use  of  a  'phone,  or  on  account  of 
atmospheric  hindrance,  one  of  them  is  unable  to  carry  on  his  part 
of  the  conversation,  whereby  an  operator  in  the  employ  of  the  com- 
pany at  the  other  end  of  the  line  is  called  on  to  carry  on  the  con- 
versation, he  is  deemed  the  agent  of  the  party  who  invokes  his  aid 
and  is  competent  to  prove  the  message  or  conversation  by  his  prin- 
cipal. ^°-  If  such  operator  has  forgotten  what  was  said  in  the  conver- 
sation, it  may  be  proved  by  Avitnesses  who  heard  him  when  the  state- 
ments were  made  to  the  party  for  whom  he  was  conversing.  ^*^^  It 
seems  that  the  identity  of  the  person  at  the  other  end  of  the  line  may 
be  proven  by  such  operator  whether  he  was  acting  as  agent  in  such 


1°"  Missouri  Pac.  E.  Co.  v.  Heiden- 
beimer,  82  Tex.  195,  27  Am.  St.  Rep. 
861.  See,  also,  Rock  Island,  etc.,  R. 
Co.  V.  Potter,  36  111.  App.  590. 

"1  Globe  Print.  Co.  v.  Stabl,  23  Mo. 
App.  451. 

"2  Sullivan  v.  Kuykendall,  82  Ky. 
483,  56  Am.  Rop.  901.  In  tbis  case  tbe 
parties  did  not  have  a  conversation  di- 
rectly witb  each  other  over  tbe  tele- 
phone, but  the  conversation  was  con- 
ducted by  an  operator  in  charge  of  a 
public  telephone  station  at  one  end  of 
the  line.  It  was  held  that  the  conver- 
sation was  admissible  in  evidence  and 
that  it  was  competent  for  the  person 
receiving  the  message  to  state  what 
the  operator  at  the  time  reported  as 
being  said  by  the  sender.  The  court 
in  the  opinion  says:  "When  using  the 
telephone,  if  he  knows  that  he  is  talk- 
ing to  the  operator,  he  also  knows  that 
he  is  making  him  an  agent  to  repeat 
what  he  is  saying  to  another  party; 
and,  in  such     a     case,     certainly     the 


statements  of  the  operator  are  compe- 
tent, being  the  declarations  of  the 
agent,  and  made  during  the  progress 
of  the  transaction.  If  he  is  ignorant 
whether  he  is  talking  to  the  person 
with  whom  he  wishes  to  communicate 
or  with  the  operator,  or  even  any  third 
party,  yet  he  does  it  with  the  expec- 
tation and  intention  on  his  part  that 
in  case  he  is  not  talking  with  the  one 
for  whom  the  information  was  in- 
tended it  will  be  communicated  to  that 
person;  and  he  thereby  makes  the  per- 
son receiving  it  his  agent  to  commu- 
nicate what  he  might  have  said.  This 
certainly  should  be  the  rule  as  to  an 
operator,  because  the  person  using  the 
telephone  knows  there  is  one  at  each 
station  whose  business  it  is  to  so  act; 
and  we  think  that  the  necessities  of  a 
growing  business  require  this  rule, 
and  that  it  is  sanctioned  by  the  known 
rules  of  evidence." 

^*^  Sullivan    v.     Kuykendall,    82    Ky. 
483,   50   Am.   Rep.    901. 


<^    701]  COMMUNICATIONS  AS  EVIDENCE.  667 

conversation,  or  wlifthcr  his  voice  was  recognized  in  a  casual  Avay, 
while  snch  person  was  conversing  with  the  party  at  the  place  at  which 
the  operator  was  stationed. 

§  700.     Operator  as  interpreter. 

It  is  a  general  rule  that  where  one,  through  an  interpreter,  makes 
statements  to  anotlier,  the  interpreter's  statements,  made  at  the  time, 
of  what  was  said,  are  competent  evidence  against  the  party.  The 
interpreter  need  not  be  called  to  prove  it,  but  his  statements  made 
at  the  time  may  be  proved  by  third  persons  who  were  present  and 
heard  it.^°^  The  reason  of  the  rule  is,  that  the  interpreter  is  the  agent 
of  both  parties  and  acting  at  the  time  within  the  scope  of  his  au- 
thority. So,  it  has  been  held  that  when  an  operator  at  some  interme- 
diate point  on  the  line  volunteers  to  aid  and  assist  two  parties  to  con- 
verse over  the  line  where  they  are  prevented  from  talking  themselves, 
each  to  each,  by  atmospheric  hindrances,  such  operator,  acts  in  the 
capacity  of  interpreter  or  as  the  agent  for  both  parties,  and  state- 
ments made  by  one  of  such  parties  to  such  operator  may  be  used 
against  the  other.  ^''^  Such  statements  are  not  given  as  hearsay  evi- 
dence, but  are  competent  because  it  is  the  declaration  of  an  agent 
made  during  the  progress  of  a  transaction  in  which  he  represents 
his  principal. ^^^ 

§  701.     Oaths  admissible  by  means  of  telephone. 

Conversations  can  l>e  carried  on  by  means  of  the  telephone  almost 
as  easily  as  if  the  parties  were  together,  face  to  face.  Of  course,  there 
may  be  some  hindrances  to  prevent  this,  but  as  a  usual  thing,  where 
the  lines  are  in  good  working  order,  communication  can  be  as  easily 
effected  by  this  means  as  by  personal  conversation ;  and  where  the 
identity  of  either  or  both  of  the  parties  is  known,  there  is  no  reason 
why  the  same  business  and  legal  transactions — where  it  is  not  nec- 
essary for  the  same  to  be  in  writing — may  not  be  conducted  by  this 
means  as  easily  as  if  the  parties  were  together  in  person.     For  in- 

i^Camerlin  v.   Palmer  Co.,   10  Allen  X.    W.    718.   37    Am.    St.   Rep.   428,    17 

539;   Schcarer  v.  Harber,  3G  Ind.  536;  L.  R.  A.  440n. 

1  Greenl.  Ev..  §  183;   1  Phill.  Ev.  519.  '»•  Id. 

'"'Oskamp  v.  Gadsen,  35  Neb.  7,  52 


668  TELEGRAPH   AXB   TELEPIIO^'E    COMPANIES.  [§    701 

stance,  in  cities  and  towns,  as  is  known,  orders,  sales,  purchases  and 
many  other  small  business  transactions  are  made  almost  exclusively 
by  the  telephone.  Orders  of  the  court- — where  the  same  is  not  to  be 
in  writing — may  be  made  through  this  means.  We  see  no  reason 
why  an  oath  may  not  be  administered  by  means  of  the  telephone, 
where  the  identity  of  the  party  making  same  is  known;  and  it  has 
been  held  tliat  an  acknowledgment  of  a  deed  made  to  a  notary  over 
a  telephone  was  valid,  when  the  identity  of  the  party  making  the 
acknowledgment  was  clear. ^°'  If,  however,  it  should  be  necessary  for 
the  party  to  attach  his  signature  to  the  instrument  of  writing,  at  the 
time  the  acknowledgment  should  be  administered,  the  rule  would  be 
otherwise. 

'"^Banning  v.  Banning,  80    Cal.    271,  ing  an  affidavit  against  the  farmer  for 

22  Pac.  210,  13  Am.  St.  Rep.  156.  The  said  drunkenness     telephoned     him     of 

act  of  an  officer  in  taking  acknowledg-  such  affidavit.  The  farmer  plead  guilty 

ments  is  judicial  in  its  character,  and  over  the  telephone  to  the  justice  of  the 

tlierefore  cannot  be  impleaded  collatev-  peace  and  then  a  fine  was  imposed  on 

ally:     Murrell  v.  Diggs,  84  Va.  900,  G  him,  he     afterwards     having    remitted 

S.  E.  461,   10  Am.  St.  Rep.  893.  the  fine  by  mail.     We  think  that  jus- 

A     certain     justice     of     the  peace  in  tice   was   properly   carried   out   in   this 

Ohio  having  learned  that  a  farmer  had  proceeding, 
been  in  town  drunk,  and  after  prepar- 


CHAPTER   XXIX. 

TELEGRAPH  MESSAGES  IN  RELATION  TO  THE  STATUTE  OF 

FRAUDS. 

§  702.    Evidence. 

703.  Subject  matter  to  which  statute  applies. 

704.  How  statute  may  be  satisfied. 

705.  Company — agent  of  sender. 

706.  Message  delivered  to  company— effect    of    under    statute   of 

frauds. 

707.  Telegram  delivered  to  addressee — effect  under  statute. 

708.  What  telegram  should  contain. 

709.  Time  of  delivery  with  respect  to  making  of  contracts. 

710.  Written  contracts  adopted. 

§  702.     Evidence. 

It  is  not  the  intention  to  give  the  histoiy  of  the  statute  of  fraud.?, 
or  to  discuss  the  laws  in  general  applicable,  thereto,  as  this  is  a  sub- 
ject foreign  to  his  work,  but  to  discuss  only  telegraphic  messages  as 
evidence,  in  relation  to  such  statutes.  The  English  statutes  of  frauds 
was  enacted  in  1676,  under  the  title,  '"An  act  for  preventing  of 
Frauds  and  Perjuries,"  ^  and  has  been  adopted,  in  substance,  in  most 
if  not  all  the  American  states.  The  fourth  and  seventeenth  sec- 
tions of  this  statute  affect  contracts  of  sale,  the  former  applying  to 
"lands,  tenements,  and  hereditiments,  or  any  interest  in  or  concern- 
ing them,"  and  the  latter  to  the  sale  of  personal  property ;  or,  in  the 
language  of  the  English  statute,  "any  goods,  wares,  or  merchandise, 
for  the  price  of  ten  pounds  sterling  or  upwards."  It  is  these  two  sec- 
tions which  are  of  special  importance  in  connection  with  telegraph 
messages.^ 

129  Car.  Q.  C.  3.  be  brought  to  charge  an  executor  or 
^iThe  English  Statute  of  Frauds  and  administrator  upon  any  special  prom- 
Perjuries,  29  Car.  11,  c.  3,  whose  pro-  isc  to  answer  out  of  his  own  estate; 
visions  have  generally  been  adopted  in  or  to  charge  the  defendant  upon  any 
the  United  States,  contains  two  sec-  special  promise  to  answer  for  the 
tions— the  fourth  and  seventeenth— of  debts,  defaults,  or  miscarriage  of  an- 
especial  importance  in  connection  with  other;  or  to  charge  any  person  upon 
telegraph  messages.  The  fourth  section  an  agreement  made  in  consideration 
provides,"  in  effect,  that  no  action  shall  of  marriage:   or  upon  any  contract  or 

(669) 


670  TELEGRAPH  AND   TELEPHONE   COMPANIES.  [§    703 

§  703.     Subject  matter  to  which  statute  applies. 

Prior  to  the  enactment  of  the  statute  of  frauds,  all  freehold  estates 
in  corporeal  hereditiment  could  be  created  by  livery  of  seizin,  and  all 
estates  less  than  freehold  by  parol.  The  statute  changed  the  law  so 
that  all  such  freehold  estates  created  merely  by  livery  of  seizin,  and 
all  estates  less  than  freehold  (except  leases  for  terms  not  exceeding 
three  years  whereon  a  rent  of  not  less  than  two-thirds  the  full  im- 
proved value  was  reserved,  created  merely  by  parol,  have  the  effect 
only  of  estates  at  will,  unless  they  are  put  in  writing  and  signed  by 
the  grantor.  The  written  instrument  required  by  the  statute  must  be 
a  deed  in  the  case  of  a  freehold  estate,^  but  in  the  case  of  estates  less 
than  freehold,  the  instrument  need  not  be  made  under  seal ;  ^  and  a 
written  agreement  for  a  lease  signed  but  not  sealed  has  been  held  to 
amount  to  a  lease  unless  it  is  otherwise  intended  by  the  parties.^ 
Where  the  subject-matter  is  concerning  "goods,  wares,  or  merchan- 
dise," a  contract  made  in  regard  to  same,  "shall  not  be  allowed  to  be 
good"  except  upon  one  of  three  conditions,  namely:  (1)  The  buyer 
shall  accept  part  of  the  goods  so  sold,  and  actually  receive  the  same ; 
(2)  or  give  something  in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment; (3)  or  that  some  note  or  memorandum  in  writing  of  the  said 
bargain  be  made  and  signed  by  the  parties  to  be  charged  by  such  con- 
tract, or  their  agents  thereunto  lawfully  authorized.^ 

sale   of   lands,   tenements,   or   heredita-  said   bargain   be   made    and   signed   by 

raents,  or  any  interest  in  or  concerning  the  parties  to  be  charged  by  such  con- 

them ;    or  upon  any  agreement  that  is  tract   or   their   agents     thereunto    law- 

not  to   be  performed  within  the   space  fully   authorized. 

of  one  year  from  the  making  thereof,  ^Jackson  v.  Wood,  12  Johns  (N.  Y.) 
unless  the  agreement  upon,  which  such  73;  Stewart  v.  Clark,  13  Mete.  (Mass.) 
action  shall  be  brought,  or  some  mem-  79.  Some  of  the  states  have  abolished 
orandum  or  note  thereof,  shall  be  in  the  requirement  of  a  seal, 
writing  and  signed  by  the  party  to  be  *  Lake  v.  Campbell,  18  111.  106;  May- 
charged  therewith  or  somo  other  per-  berry  v.  Johnson,  3  Greene  (N.  J.) 
son  thereunto  by  him  lawfully  author-  116;  Hill  v.  Woodman,  14  Me.  38;  Al- 
ized.  The  seventeenth  section  enacts,  len  v.  Jaquish,  21  Wend.  (N.  Y. )  628. 
in  effect,  that  no  contract  for  the  sale  "  Baxter  v.  Brown,  2  W.  Bl.  973 ; 
of  any  goods,  wares,  or  merchandise,  Goodlittle  v.  Way,  17  R.  735.  See, 
for  the  price  of  ten  pounds  sterling,  or  also,  Harrison  v.  Parmer,  76  Ala.  157. 
upwards,  shall  be  allowed  to  be  good  •  Langdell's  Select  Cases  on  Sales, 
imless,  among  other  exceptions,  some  1032-33. 
note  or  memorandum  in  writing  of  the 


(^    705]  THE    STATUTE    OF    FKAUDS.  '671 

§  704.     How  statute  may  be  satisfied. 

The  statute  may  be  satisfied  eitlier  by  a  written  contract  or  by  a 
sufficient  memorandum  evidencing  the  existence  of  an  antecedent 
parol  contract.  There  is  a  distinction  between  the  contract  itself  and 
the  "note  or  memorandum"  evidencing  its  existence,  and  it  is  only 
when  the  contract  is  oral  that  it  is  necessary  that  there  be  a  written 
memorandum.  When  the  contract  is  oral  and  is  to  be  evidenced  by  a 
memorandum,  the  latter  must  contain  all  the  material  and  express 
terms  of  the  contract,  and  must  be  signed  by  the  party  to  be  charged, 
or  by  a  person  or  agent  thereunto  lawfully  authorized  by  him.' 

§  705.     Company — agent  of  sender. 

With  reference  to  contracts  entered  into  by  an  agent,  the  principal 
will  be  bound  by  any  act  made  within  the  apparent  limit  of  the 
agent's  authority,  without  regard  to  the  violation  of  any  instructions, 
private  in  their  nature,  which  the  principal  may  have  given  the  agent 
as  to  the  manner  of  executing  his  authority.  Such  is  the  undoubted 
rule,  and  is  sustained  by  almost  all  the  authorities.^  The  principal 
is  bound  by  all  the  agent's  acts.  So,  with  respect  to  the  making  of 
a  contract  for  said  principal,  all  acts  done  in  his  behalf  wdll  be 
charged  to  the  principal.  It  has  been  seen  heretofore  that  contracts 
may  be  made  betw^een  two  persons  by  the  medium  of  the  telegraph, 
and  while  the  telegraph  company  may  be  considered,  in  a  certain 
light,  an  independent  contractor  with  respect  to  said  con- 
tract, yet  it  is  very  generally  held  that  it  acts  as  agent  for  the 
party  employing  its  services,  or  the  one  suggesting  these  means  to 
consummate  such  contract.  Therefore,  this  being  the  general  rule, 
any  act  of  the  company  in  carrying  out  such  contract  will  be  bind- 
ing on  the  sender  or  the  company's  principal. 

^Langdell's    Select    Cases    on      Sales,  104  Ind.  293,  54  Am.  Rep.  319,  4  X.  E. 

1032-33.  20;     Austrian     v.   Springer,     94  Mich. 

8  Louisville   Coffin    Co.   v.    Stokes,    78  343,   34   Am.    St.   Rep.   350,   54   X.    W. 

Ala.   372;    Liddell   v.   Sohline,   55   Ark.  Rep.   50;   Potter  v.   Springfield  :\Iilling 

627,  17  S.  W.  705;   Hamill  v:  Ashley,  Co.,  75  Miss.  532,  25  So.  259;  Gerhav.lt 

11     Colo.    180,   17    Pac.   502;     Paine  v.  v.  Boatman's  Sor.  Inst.,  38  Mo.  60,  90 

Tillinghost,  52  Conn.  532;   Lattomusv.  Am.   Dec.   407;    Whiley  v.   Duncan.   47 

Farmers  Mut.  F.    Ins.    Co.,    3    Houst.  S.  C.  139,  25  S,  E.  Rep.  54. 
404;  Lake  Shore,  etc.,  R.  Co.  v,  Foster, 


672  TELKGKAPII   AXD   TET.EPHOXE   C0:MPAXIES.  [^    706 

§  706.     Message  delivered  to  company — effect  of  under  statute  of 
frauds. 

While  an  oral  message  may  be  delivered  to  a  company  to  be  trans- 
mitted and  delivered,  yet  the  general  regulations  of  these  companies 
require  the  message  to  be  written  and  signed.  Such  regulations,  as 
has  been  seen,  are  reasonable  and  enforcible.  The  question  which 
presents  itself  under  this  subject  is,  Whether  a  written  message,  con- 
cerning a  contract  and  containing  all  the  material  and  express  terms 
of  the  contract,  is  a  sufficient  memorandum,  when  delivered  to  the 
company  for  transmission,  to  satisfy  the  statute  of  frauds  ?  It  has 
been  so  held.^  A  memorandum  is  in  the  nature  of  an  admission 
by  the  party  to  be  charged,  and  it  is  not  necessary,  therefore,  for  it  to 
be  delivered  to  the  other  party  in  order  for  the  contract  to  become 
effective.  ^°  The  fact  that  the  telegram  is  written  in  accordance  to 
the  regulations  of  the  company,  does  not  affect  its  validity  as  a  mem- 
orandum. The  act  of  employing  the  company  and,  consequently, 
the  act  of  writing  the  message  in  compliance  with  the  regulation  of 
the  company,  is  a  voluntary  act,^^  and  is  not  an  act  done  under  du- 
ress. 

§  707.     Telegram  delivered  to  addressee — effect  under  statute. 

The  next  question  which  presents  itself  in  considering  this  sub- 
ject is.  Whether  a  telegram  delivered  by  the  company  to  the   a<l- 

*  McBlain   v.   Cross,  25   L.   T.   U.   S.  together  constituted  a   sufficient   mem- 

804;    Trevor  v.   Wood,  36   N.  Y.  307;  orandum  of  the  contract  to  satisfy  the 

Smith  V.  Easton,  54  Md.   138,  39  Am.  Statute  of  Frauds,  on  the  ground  that 

Rep.    358;    Watson    v.    Baker,   71    Tex.  the  defendant  be  treated  as  the  undis- 

739;  Little  v.  Dougherty,  11  Colo.  103;  closed  principal  of  C,  who  appeared  on 

Ex.  p.  Brown,  7  Mo.  App.  487.     In  the  the  telegrams  to  be  liable  as  principal, 

case  of  McBain  v.  Cross,  above  cited,  B.  So,   also,   a   telegram    sent   in   pursu- 

having  contracted  with  C,  defendant's  ance   of   a   previous   correspondence  by 

brother,  for  the  sale  of  hay,  brought  an  letter,  may  constitute  "an  uncondition- 

action  against     defendant     for  not  ac-  al  promise  in  writing  to  accept  a  bill 

cepting.     At  the     trial     the  judge  ad-  before    it    is   drawn,"    and   amounts   to 

mitted  letters  and  telegrams  signed  by  an     actual  acceptance  under  the     stat- 

C,  as  evidence  against  defendant,  and  ute,  so  as  to  preclude  the  necessity  of 

the  jury     found     for     plaintiff.     Held,  presentment  for  acceptance  or  payment, 

that  there  was  sufficient  evidence  of  tlie  Whilden  v.  Merchants',  etc.,  Nat.  Bank, 

authority,  and  that  the  two  telegrams,  64  Ala.   1,  38  Am.  Rep.   1. 

of  which  one  was  signed  in  C.'s  name,  '"  Brown     on     Statute      of      Frauds, 

and  in  the  other  the  name  of  the  de-  §  354a. 

fendant  was  not     mentioned  as  buyer,  "  Brown  ex.  p.,  7  Mo.  App.  484. 


<§    708]  TIIK  STATUTE  Ol'   FKACDS.  673 

dressee  satisfies  the  statute,  if  it  contains  the  material  and  express 
terms  of  the  contract  and  the  signature  of  the  sender — the  party 
to  be  char<>ed — written  by  the  company?  If  the  telegraph  company 
is  the  agent  of  the  sender,  which  may  be  the  case,  as  stated  in  a  pre- 
ceding section  and  which  will  be  further  considered,  a  delivery  of 
such  telegram  by  it  will  Ix'  a  sufficient  compliance  with  the  statute. 
But.  on  the  other  baud,  if  the  company  is  not  operating  in  the  ca- 
pacity of  agent  for  the  sender,  the  rule  would  be  otherwise.  It  is 
presumed  tliat  a  telegraph  company  has  written  out  the  telegram  at 
the  place  to  w  bich  it  was  delivered  in  the  exact  words  in  w'hich  it  was 
•  Iclivcrcd  to  such  company  for  transmission,  and  when  the  latter  is 
deemed  the  agent  of  the  sender  in  delivering  any,  as  distinguished 
from  certain,  messages,  the  message  delivered,  if  it  contain  the  ma- 
terial and  express  tenns  of  the  contract,  will  satisfy  the  statute,  al- 
though tlie  message  has  been  altered  in  its  transmission.  But  if 
the  company  is  only  representing  the  sender  as  agent  in  delivering 
the  message  which  it  receives  from  him,  the  statute  will  be  satisfied 
?o  lon^-  as  the  message  has  not  been  altered,  or  when  it  conforms  to 
the  message  which  the  company  received.  We  shall  hereafter  speak 
more  fully  of  contracts  made  through  the  medium  of  the  telegraphy 
and  how  the  statute  of  frauds  is  affected  thereby. 

§  708.     What  telegram  should  contain. 

Whether  or  not  a  telegram,  delivered  to  or  by  a  telegraph  company, 
contains  sufficient  memoranda  of  a  contract  to  satisfy  the  statute  of 
frauds,  must  be  determined  by  the  law  applicable  to  the  subject  in 
general.  Thus,  generally  speaking,  the  memorandum  should  contain, 
in  substance,  all  the  material  parts  of  the  contract,  including  the 
names,  or  a  dcscrijitioii,  of  liotli  parties;'-  the  subject-matter,  which 
must  be  correctly  stated;'"'  the  price,  if  actually  agreed  upon  by  the 

'-Cooper  V.  Smith,  15  East.  103;  At  A    defective      memorandum      of    sale 

len   V.   Bennett.  3   Fannt.   10!);   Lincoln  lannot     be     helped     out  by  a  telegram 

V.  Eric  Preserving  Co..  132  ^lass.   120;  from  one  of  the  parties  with  which  the 

McElroy  v.  Levey,  (il   Md.  307:   Andcr-  other   is    in   no   wise   connected.      J.   K. 

son  V.  Harold.    lt>  oliio  390.  Arnisby   Co.   v.    Eckerly,    42    Mo.    App. 

"Hazard   v.    Day.    14    Allen    (Mass.)  200. 

487,   02   .\u\.    Die.   7!tO;    May   v.   Ward.  So,    also,    telegrams   between   a   sher- 

134    Mass.    127;    McElroy    v.    l?uck.    35  iff  and  a  third  person  are  inadmissible 

Mich.  434.  to  show  an  agreement  between  a  sher- 
T.  &  T.— 43 


67-i  TELEGEAPH   AND   TELEPHONE   COMPANIES.  [§    709 

parties;^"*  the  stipulations  as  to  credit,  and  the  time  and  place  of  pay- 
ment, if  sucli  tlicre  be;^^  and  any  other  terms  and  conditions  which 
are  a  part  of  the  contract.  ^*^  In  accordance  with  this  rule,  a  tele- 
gi'am  properly  addressed  and  signed,  in  the  following  words,  '^You 
may  come  on  at  once  at  a  salary  of  two  thousand  dollars,  conditional 
only  upon  satisfactory  discharge  of  business,"  was  held  to  be  insuffi- 
cient as  a  memorandum  to  satisfy  the  statute,  since  it  fixed  no  time 
for  the  continuance  of  the  employment  and  did  not  even  mention  the 
nature  of  the  employment  itself.^''''  Telegrams  which  are  sigTied  by  a 
person  and  relate  to  a  contract  but  do  not  state  its  terms  or  condi- 
tions, are  not  sufficient  to  take  the  contract  out  of  the  statute,  and  a 
defective  memorandum  of  sale  cannot  be  helped  out  by  a  telegram 
from  one  of  the  parties  with  which  the  other  is  in  nowise  connected. 
So,  also,  telegrams  between  a  sheriff  and  a  third  person  are  inadmis- 
sible to  show  an  agreement  between  a  sheriff  and  a  county  in  rela- 
tion to  the  subject-matter ;  and  telegrams  concerning  the  sale  of  prop- 
erty are  not  a  sufficient  memorandum  under  the  statute,  where  it  is 
impossible  to  tell  from  them  exactly  wdiat  property  is  intended  to 
be  included,  and  the  parties  disagree  as  to  what  property  is  meant. 

§  709.     Time  of  delivery  with  respect  to  making  of  contracts. 

It  is  not  essential  that  the  memorandum  should  be  made  -at  the 
same  time  as  the  contract  ;^^  nor  is  it  necessary  that  all  the  terms  of 
the  contract  should  be  noted  at  one  time,  or  in  one  piece  of  paper; 
but  it  will  suffice  if  the  whole  contract  be  in  substance  contained  on 
separate,  pieces,  and  these  memoranda  make  such  reference  to  each 
other  as  to  show  that  they  are  parts  of  one  whole. ^^     So,  applying 

ill'   and   a   county   in    relation    to   their  v.  Hickman.  20  Pa.  St.   180;   O'Niel  v. 

subject-matter.        Yavapie     County     v.  Crane,  67  Mo.  250. 

O'Niel,  29  Pac.  Rep.    (Ari.)   430.  '« Wright   v.    Weeks,    25    N.    Y.    158; 

Telegrams   concerning     the     sale     of  Xorris  v.  Blair,   39  Ind.   90;    Williams 

property   are   not    sufficient    memoran-  v.   Robinson,   73   Me.    186. 

dum  under  the  statute,  where  it  is  im-  '"Riley    v.     Famsworth,     116     Mass. 

possible  to  tell  from  them  exactly  what  223;   Oakman     v.     Rogers,     120  Mass. 

property     is  intended  to     be     included  214. 

and  the  parties     disagree     as  to  what  "  Palmer  v.   M.   P.  Rollin.ij;  ^lill   Co., 

property     is     meant.      Bcckenridge     v.  32  Mich.  274. 

Crocket,    78    Cal.    529.  ''  Bird  v.  Munroe,  66  Me.  347. 

'*  Smith  V.  Arnold,     5     Mason     416;  « Peck  v.  Vandemark,  99  N.  Y.  29; 

Phelps  V.  Stillings,  6  N.  H.  505;   Soles  Jelks  v.  Barrett,  52  Miss.  315;   Fisher 

V.   Kuhn,   54   Miss.   480. 


<^    710]  THE  STATUTE  UE   EltAUDS.  075 

the  rule  to  telegrams,  it  is  not  necessary  that  they  be  delivered  at 
the  time  the  contract  was  made/  nor  is  it  necessary  that  all  of  the 
facts  should  be  embraced  in  one  message,  but  if  they  are  made  out 
properly  on  different  telegraph  blanks  and  signed  by  the  sender,  it  is 
a  sufficient  compliance  with  the  statute. 

§  710.     Written  contracts  adopted. 

The  statute  of  frauds  is  not  affected  by  the  parties  mutually  ac- 
cepting a  written  contract,  as  this  is  considered,  under  such  statute, 
a  contract  in  writing.  Such  contract  cannot  be  varied  by  oral  tes- 
timony, unless  it  was  created  by  both  written  and  oral  communica- 
tion. In  the  latter  instance,  it  is  clear  that  the  parties  did  not  in- 
tend to  create  the  contract  by  their  mutual  adoption,-^  and,  in  such 
cases,  oral  testimony  should  be  admissible  to  prove  the  intent  of 
the  parties.  In  accordance  with  tliis  rule,  oral  testimony  of  the  terms 
of  a  contract  to  let  a  canal  boat  was  admitted,  although  the  message 
which  finally  completed  the  contract  was  in  the  following  words: 
'*You  may  have  barge  Globe  for  $400,  until  October  1.  Rent  paya- 
ble half  1st  July,  and  half  1st  October."-^  A  message  of  this  de- 
scription is  not  sufficient  as  a  memorandum  to  satisfy  the  statute  and 
does  not  contain  the  terms  of  the  oral  contract ;  and  oral  testimony 
should  be  admissible  in  such  instances  to  show  the  meaning  of  the 
written  communication.^^ 

=»  Beach  v.   R.  &  D.   B.   Rd.   Co.,   37  -'  Beach    v.    R.  &  D.   B.  Rd.  Co.,  37 

X.   Y.   451:  X-  Y.  457. 

-^McElroy  v.   Buck.   35  Mich.   434. 


CHAPTER  XXX. 

TELEGRAPH  MESSAGES  AS   PRIVILEGED  COMMUNICATIONS. 

§  711.  Introduction. 

712.  Same  continued — in  hands  of  telegraph  compaaies. 

713.  Postal  law  not  applicable  to  telegraph  messages. 

714.  Same   continued — would    assist   in   illegal   purposes. 

715.  Statutes    forbidding    disclosure    of   telegrams. 

716.  Same  continued — not  protected  by  postal  laws. 

717.  When  may  be  privileged  communications. 

718.  Steps  to  obtain  telegrams — in  general. 

719.  Same  continued — how  further  obtained — court  inspection. 

720.  Rule  for  describing  message  in  writ. 

721.  Same  continued — illustrations — valid  services. 

722.  Same  continued — when  invalid. 


§  711.     Introduction. 

Having  treated,  in  preceding  chapters,  of  the  manner  of  proving 
the  contents  of  a  telegraphic  message,  and  when  such  satisfies  the 
statute  of  Frauds,  we  shall  now  speak  of  such  as  privileged  communi- 
cations. In  discussing  the  subject,  we  shall  attempt  to  treat  it  under 
two  different  views  with  respect  to  the  person  from  whom  a  divul- 
gence  of  the  message  is  sought;  that  is,  whether  the  message  is  in 
the  hands  of  the  sender  or  addressee,  or  whether  it  is  in  the  hands 
of  the  company.  With  respect  to  the  first  of  these — whether  a  mes- 
sage in  the  hands  of  the  sender  or  addressee  is  privileged  communi- 
cation— we  shall  be  very  brief,  since  this  question  depends  entirely 
upon  the  laws  relating  to  privileged  communications  in  general,  and 
the  fact  that  the  communication  was  made  by  telegraph  instead  of 
some  other  way,  does  not  change  the  rule.  The  mode  of  communica- 
tion has  never  been  held  to  determine  the  question  of  privlege. 

§  712.     Same  continued — in  hands  of  telegraph  companies. 

It  has  been  a  very  mooted  (juestion  whether  a  message  in  the  hands 
of  the  telegraph  company  was  a  privileged  communication.  It  was 
held  in  England,  before  the  government  got  control  of  these  compan- 

(676) 


(^    713]  PRIVILKOKIJ    COMMUMCATIOXS.  677 

ic's,  that  it  was  not;^  since  that  time,  the  earlier  cases  held  that  they 
were  privileged  cominuiiicatioiis,-  but  the  latter  decisions  hold  them 
not  to  be  privileged.^  This  (piestion  lias  Ix-eii  more  tlioroughly  dis- 
cussed in  the  courts  of  our  country,  and  it  has  been  very  generally 
held  that  such  communications  were  not  jirivileged.  Those  who  urge 
that  the  messages,  in  the  hands  of  the  telegrajdi  company,  are  privi- 
leged eonnnunications,  do  not  niiciiipi  u>  support  their  reasons  upon 
the  rtdationship  of  the  parties,  or  the  subject-matter  of  the  messages, 
or  u])on  the  confidential  nature  of  the  communication.  They  base 
their  reasons  either  upon  the  ground  of  public  policy  which  sustain 
those  legal  statutes  of  the  United  States,  which  in  effect,  give  in- 
violability to  postal  communications,  or  upon  particular  statutes  giv- 
ing inviolability  to  telegraph  messages  in  the  hands  of  telegraph  com- 
panies.    We  shall  treat  these  briefly  in  separate  sections. 

§  713.     Postal  lavi^  not  applicable  to  telegraph  messages. 

Able  writers  have  taken  the  position  that  the  law  which  protects 
the  contents  of  communications  made  through  the  United  States  mail 
should  :i]ip]y  to  eomniuuieations  made  by  the  medium  of  telegTaphy, 
as  the  connmmications  nuide  by  the  latter  means  were  oftner  as  great 
in  importance  as  those  sent  by  mail.^     Granting  this  to  be  the  case, 

»The  Coventi-y  Case,  1  O'M.  &  H.  97,  "1.     That   it  defeats  tlie     policy     of 

104;    The   Bridgwater   Case,    1    O'M.   &  the  law,  which  invites  free  communica- 

H.   112.  tion.    and    to    the    extent   that   it   may 

-The   Taniston   Case,   2    O'^l.    &     H.  discourage    correspondence,    it    operates 

(i(i:  The  Stroud  Case.  2  O'^I.  &  H.  107,  as   a   restraint   upon   industry   and  en- 

110.  terprise,   and,   what      is      equal    impor- 

*The      Bolton    Case,      2    O'M.    &    II.  tance,   upon    intimate    social    and   fam- 

138;   The  Horwich   Case,  3   O'M.   &  H.  ily  correspondence. 

61,  62;   Toraline  tSk  Tyler,  44  L.  T.   X.  "2.     It  violates  the  confidence  which 

S.   187.  tlio    law    undertakes    to    render    secure, 

*  In   IS  Am.  L.  Reg.  65,  et  seq.,  Mr.  and    makes   the   promise   of   the  law   a 

Cooley   discusses   the   subject   and   con-  deception. 

tends  for  a  rule  opposed  to  that  of  the  "3.      It   seeks   to   rcacli   a   species   of 

text.     He     announces,     in     conclusion.  evidence   which,    from    the   very   course 

that  the  doctrine     that     telegraph   au-  of  the  business,  parties  are     interested 

thorities  may  be  required  by  legal  pro-  to     render     blind  and  misleading,  and 

cess  to  protluce  private  messages  upon  which,  therefore,  nnist  often  present  us 

the  application  of  third  persons,  is  ob-  with   error   in   the   guise  of   truth,   un- 

jected   to   on   the   following  grounds:  der  circumstances     which     precludes  a 

discovery   of   the   deception. 


678  TELEGRAPH  AND  TELEPHONE   COMPANIES.  [§    713 

it  is  a  question  to  be  settled  by  the  legislative  and  not  by  the  judicial 
branch  of  the  government.^  As  seen,  the  government  has  control  of 
the  postal  system,  and,  for  this  reason,  it  has  legislated  upon  the  sub- 
ject, and  it  is  not,  therefore,  an  assumption  of  a  legislative  power  for 
the  courts  to  consider  questions  arising  under  this  subject;  but  it 
would  be  if  they  should  consider  a  subject  not  embraced  in  the  postal 
laws.  There  is  also  a  difference  in  the  amount  of  information  de- 
rived from  the  communications  sent  by  these  two  instrumentalities  of 
news  communicators,  and  this  should  be  a  reason  for  not  permitting 
communications  sent  by  telegraph  to  be  protected  by  the  postal  law^s. 
AIL  the  information  obtained  from  the  contents  of  a  communication 
sent  by  mail,  is  such  as  may  be  seen  from  the  wrapper  or  envelope, 
while,  on  the  other  hand,  a  telegraph  company  acquires  full  knowl- 
edge of  the  contents  of  messages  entrusted  to  it  for  transmission.  If 
a  court  desires  to  obtain  information  of  certain  communications  sent 
by  telegTaph,  it  may  secure  this  from  the  company  without  exposing 
other  communications,  but  the  same  information  could  not  be  ob- 
tained from  the  United  States  mail  without  divulging,  perhaps,many 
other  communications  whose  secrecy,  immaterial  for  any  purposes  of 
justice,  might  be  of  the  utmost  importance  to  the  parties. 

§  714.     Same  continued — would  assist  in  illegal  purposes. 

As  we  all  know,  and  as  it  has  often  been  stated  at  other  places  in 
this  work,  telegraph  companies  have  become  great  factors  in  the  com- 
mercial world,  and  the  news  transmitted  by  means  of  those  instru- 
mentalities concern  matters  of  almost  every  description.  It  is  the 
quickest  way  of  accomplishing  business  transactions  at  distant  points, 

'In  Ex.  p.  Brown,  72  ]\To.  91,  37  Am.  Cdiisideration   of   the  'lefjislative  branch 

Rep.  426,  the  court  said :  "The  fact  that  of   the   government  in   determining  the 

railroad   trains     orders      are   generally  propriety  of  placing  telegraph  commii- 

communicated     by     telegraph,   that     a  nications   on   the     same     footing   with 

vast   amount   of     trade     and  traffic   is  correspondence   by   mail,    or     declaring 

transacted  through  this  medium,  that  them     privileged;    but    the    annuncia- 

it  has  become  of  almost  equal   impor-  tion  of  such  a  doctrine  by     the     court 

tance  in  the  commerce  of  this  country  would     be     an     assumption  of  power 

with    the    postal    system,    and    that    in  which   belongs    to    the    legislative    de- 

a  business  sense  men  are  compelled  to  jiartment." 
communicate  by  telegraph,  are  for  the 


§    715]  PRIVILEGED   COMMUXICATIONS.  671) 

If,  then,  communications  sent  by  means  of  telegraphy  were  allowed 
to  be  privileged  communications,  many  criminal  acts  would  be  con- 
summated by  means  of  these  companies.  The  criminal  would  com- 
municate the  news  concerning  his  crime,  knowing  at  the  time  that 
the  company  could  not  divulge  the  same.°  Of  course,  the  company 
could  refuse,  as  has  been  seen,  to  transmit  news  concerning  illegal 
purposes,  but  it  is  not  every  time  that  the  company  knows  of  the  il- 
legal nature  of  the  communication.  While  the  same  criminal  object 
may  be  accomplished  by  communications  through  the  mail,  yet  other 
secrets  and  communications  would  be  divulged,  as  stated  elsewhere, 
if  the  courts  should  attempt  to  obtain  the  information  concerning  this 
particular  charge  from  mail  matters.  This  view,  however,  has  been 
assailed  by  Mr.  Cooley  in  a  very  able  discussion  on  the  subject.'^ 

§  715.     Statutes  forbidding  disclosure  of  telegrams. 

There  are  statutes  in  some  of  the  states  which  forbid,  under  pen- 
alty, the  disclosure  of  telegrams  by  telegraph  companies.®  It  seems, 
however,  from  a  penisal  of  most  of  the  statutes  on  this  subject,  that 
there  are  few  which  prohibit  the  disclosure  of  the  contents  of  tele- 

'  In  State  v.  Litchfield,  58  Me.  200,  tractive  to  tlie  well-being  of  society, 
the  court,  said:  "Nor  can  telegraphic  a  state  of  things  rendering  its  useful- 
communications  be  deemed  any  more  ness  at  least  questionable.  The  cor- 
confidential  tlian  any  other  communi-  respondence  of  the  traitor,  the  murder- 
cations.  Thej^  are  not  to  be  protected  er,  the  robber,  and  the  s\\  indler,  by 
to  aid  the  robber  or  assassin  in  the  con-  means  of  which  their  crimes  and  frauds 
summation  of  their  felonies,  or  to  fa-  could  be  the  more  readily  accomplished 
cilitate  their  escape  after  the  crime  and  their  detection  and  punishment 
has  been  committed.  Telegraphic  avoided,  would  become  things  so  sacred 
companies  cannot  rightfully  claim  that  they  could  never  become  accessi- 
that  the  messages  of  rogues  and  crim-  be  to  public  justice,  however  deep 
inals,  which  they  may  innocently  or  might  be  the  public  interest  involved 
ignorantlj'  transmit,  should  be  with-  in  their  production." 
held  whenever  the  cause  of  justice  ren-  '  18  Am.  L.  Reg.  72. 
ders  their  production  necessary."  *Code     of    Tenn.    §1501-2:    Code    of 

In  Ilenisler  V.  Friedman,  2  Pars.  Sel.  ]Miss.    (1892)    §1301:    Laws     of     Nor. 

Cas.    (Pa.)    274,  it  is  said  in  ordering  Car.   (1889)   Ch.  41,  p.  01;;  Public  acts 

the   production   of   a   telegram:      "The  Conn.   (1889)   Ch.  30,  p.  18;  Wisconsin 

telegraph  may  be  used  with   the   most  Rev.   Stat.    §4557;    Iowa  Code   §1328. 
absolute     security     for     purposes     dis- 


680  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    715 

grams  while  in  the  liaiuls  of  the  tek'graph  company.  While  there  is 
a  difference  between  some  of  these  statutes,  yet  there  is  a  similarity 
in  them  all ;  and,  for  the  reason  that  there  is  a  difference  in 
some  of  them  in  some  respect,  it  would  be  difficult  to  lay  down  a  rule 
which  would  be  applicable  to  all.  So,  we  would  therefore  suggest 
that  the  statute  under  which  the  cause  arises  be  consulted.  In  some 
of  these  the  provision  of  the  statute  is  against  a  disclosure  of  the  con- 
tents of  such  telegrams,  except  to  a  court  of  justice.  In  a  great  num- 
ber of  them  the  provision  is  against  a  willful  or  intentional  or  an 
unlawful  disclosure  of  the  contents  of  such  telegrams,  and  the  pen- 
alty is  generally  imi)Osed  on  the  person  and  not  the  company  making 
the  disclosure.  In  others,  the  provision  stands  unqualified.  It  will 
be  seen  from  a  further  perusal  of  these  statutes  that  none  of  the  pro- 
visions therein  prohibit  the  company  from  disclosing  the  contents  of 
such  telegrams  when  legally  summoned  for  that  purpose  into  a  court 
of  justice.  The  first-mentioned  statutes  provided  that  they  should 
not  be  disclosed  except  to  a  court  of  justice ;  this  fact,  then,  does  away 
with  the  question  of  privileged  comnninication.  Where  a  telegraph 
company  discloses  the  contents  of  a  telegram  in  a  court,  in  obedience 
to  a  subpoena  duces  tecum,  this  would  be  a  lawful  and  compulsory 
disclosure,  and  not  an  intentional,  willful  or  unlawful  disclosure  as 
meant  in  the  second  mentioned  statute.  The  same  rule  would  apply 
when  the  provisions  of  the  statute  stand  unqualified  since  in  the 
construction  of  such  enactment,  an  exception  in  favor  of  due  legal 
process  is  always  implied.'' 

§  716.     Same  continued — not  protected  by  postal  laws. 

It  has  been  said  in  a  previous  section  that  the  contents  of  mes- 
sages in  the  hands  of  telegraph  companies  were  not,  in  the  absence 
of  statutes  to  that  effect,  protected  under  the  principle  of  public  pol- 
icy similar  to  that  which  exists  in  favor  of  letters  sent  through  the 
mail.  While  there  is  a  difference  of  opinion  on  the  subject,  the  better 
view  is  that  these  statutory  provisions  do  not  change  the  rule.  "There 
is  no  such  analogy  between  the  transmission  of  communications  by 
mail,  and  their  transmission  by  telegraph,  as  would  justify  the  appli- 
cation to  the  latter  of  the  ])rinciples  which  obtain  in  respect  to  the 

'-' Brown  Ex.  parte,  7  Mo.  App.  484. 


§    717]  PKIVILKGED    COMMUNICATIONS.  681 

former;  and  crrtainlv  penal  statutes  relating  to  the  one,  cannot  by 
the  courts  1)e  declared  applicable  to  the  other."^" 

§  717.     When  may  be  privileged  communications. 

The  question  which  next  presents  itself  is,  Is  a  telegram  in  the 
hands  of  the  telegra])h  company  ever  a  privileged  communication? 
It  is  very  evident  that  a  message  which  is  not  a  privileged  communi- 
cation in  the  liands  of  the  parties  to  it,  is  not  a  ])rivileged  communi- 
tion  in  the  hands  of  a  telegi-aph  company ;  "  but  where  a  message  is  a 
privileged  conmiunication  in  the  hands  of  the  parties  to  it,  the  ques- 
tion is  not  quite  so  clear.  In  other  words,  communications  between 
husband  and  wife,  attorney  and  client,  and  physician  and  patient 
are  privileged  communications  while  such  remain  imdisclosed ;  but 
as  soon  as  there  is  a  disclosure  of  such  communciations  to  a  third  per- 
son, the  latter  is  under  no  obligation,  with  respect  to  the  priviledge 
accorded  under  this  rule  of  law,  to  retain  such.  Then,  when  a  dis- 
closure of  such  a  communication  is  made  to  a  tclegi-aph  company  for 
transmission,  does  such  a  disclosure  fall  under  disclosures  made  to  a 
third  persons  as  above  stated  ?  It  very  clearly  does  not.  There  is  an 
exception  to  the  above  rule,  and  it  is  under  this  that  the  question 
can  be  negatively  answered.  Privileged  communications  do  not  lose 
their  privilege  in  the  hand  of  another  who  was  informed  of  such 
merely  as  a  necessary  means  of  affecting  them.  Thus,  a  privileged 
communication  between  attorney  and  client  does  not  lose  its  privilege 
in  the  hands  of  an  interpreter  whose  aid  was  necessary  to  affect  it/- 
and  it  is  under  this  exception  that  a  privileged  communication  in  the 
hands  of  a  telegraph  company,  simply  as  a  means  of  affecting  its  pur- 
pose, is  a  privileged  communication  and  cannot  therefore  be  dis- 
closed.^^ 

"E\-.   p.   Brown   72   Mo.   01,   37   Am.  Va.  546;  In  restorer,  63  Fed.  564.     See. 

Rep.   426;    Ex.   p.   Brown,   7   Mo.   App.  also,  U.  S.  v.  Hunter,  15  Fed.  712:  U. 

484,   72     ]Mo.    8.'},   37     Am.   Rep.    426;  S.  v.  Babcock,  3  Dill.    (U.  S.)    566. 

Woods  V.  Miller,  55  Iowa  168,  39  Am.  "Leslie  v.   Harvey.   15  L.  C.   .Jur.   'J. 

Rep.   170;   Com.  v.     .Jeflfries.     7     Allen  '- Bemberry  v.  Bemherry.  2  Beor.  173 ; 

(Mass.)    548,  83  Am.  Dec.  712;   Henis-  1  Greene  on  Ed.  §239. 

ler  V.  Friedman,  2  Pars.  Sel.  Cas.  (Pa.).  '='2  Br's.  Purd.  Dig.  §§2,  3. 
274;    Nat.    Bank    v.    Xat.    Bank,    7    W. 


682  TELEGRAPH  AND  TELEPHONE   COrMPANIES.  [^    718 

§  718.     Steps  to  obtain  telegrams — in  general. 

Having  considered  the  question  whether  telegrams  in  the  hands 
of  telegraph"  companies  are  privileged  communications,  and  showing 
that  they  are  not  so  considered,  we  shall  now  proceed  to  discuss  the 
subject  as  to  how  they  may  be  obtained  from  these  companies  in  or- 
der that  their  contents  may  be  disclosed  in  a  court  of  justice.     There 
have  been  different  methods  pursued  to  obtain  private  writings  or 
documents  which  are  in  the  hands  of  others,  for  the  purpose  of  pro- 
ducing them  in  courts  as  material  evidence  of  an  issue  involved.     In 
equity,  it  has  been  held  that  a  bill  of  discovery  was  the  proper  method  ' 
to  obtain  these  writings ;  and  at  common  law,  the  plaintiff  in  a  case 
could  obtain  these  writings;  and  at  common  law,  the  plaintiff  in  a 
case  could  obtain  an  order  to  inspect  the  private  documents  in  the 
hands  of  another  for  the  purpose  of  preparing  his  pleadings.^'*     He 
could,  also,  under  the  common  law  procedure,  serve  notice  on  the 
person  in  whose  possession  the  documents  were,  to  present  such  in 
court.     Yet,  this  method  would  not  compel  the  person  to  protect  such 
documents,  but  would  only  lay  a  ground  for  secondary  evidence.  The 
general  and  most  common  method  pursued,  where  it  is  desired  that 
the  document  shall  be  produced  in  court  as  evidence  in  the  case  at 
issue,  is  by  summoning  the  person  in  whose  possession  the  documents 
are,  to  come  into  court  and  bring  such  documents  particularly  des- 
cribed.   The  process  is  most  generally  a  subpeona  duces  tecum.  Where 
the  documentary  evidence  is  in  the  hands  of  one  of  the  parties  to  the 
suit,  whether  such  party  is  a  telegi-aph  company  or  some  individual, 
the  description  of  such  document  offers  no  peculiarity  in  their  appli- 
cation to  telegi-aph' messages;  but  if  such  person,  possessing  these 
documents,  is  not  a  party  to  the  suit  and  is  compelled  under  a  sub- 
poena duces  tecum  to  produce  such  in  court,  there  is  a  peculiarity  in 
its  practical  application  to  telegraph  messages  in  the  hands  of  tele- 
graph companies.     Under  the  first  kind,  the  description  of  the  doc- 
ument in  the  subpoena  duces  tecvmi  must  be  made  with  reasonable 
certainty  but  no  greater  degree  of  particularity  will  be  required  than 
is  practicable  under  all  the  circumstances.^^  Under  the  latter  rule  it  is 

"  Wharton  on  Ed.  §  742.  Morris  v.  Hermen,   1   C.  &  M.  29 ;   41 

"U.  S.  V.  Babcock,  3  Dill.    (U.   S.)       E.  0.  L.  22. 
566;   Lee  v.  Augas  L.   R.   2     Eq.     59; 


(^    720]  PRIVILEGED   COMMUNICATIONS.  683 

different.  Telegraph  companies  are  in  possession  of  innumerable 
documents  and  messages,  and  in  order  that  matters  irrelevent  to  tlie 
point  at  issue  shall  not  be  disclosed,  the  subpoena  duces  tecum  should 
describe  the  message  desired  with  the  greatest  degree  of  certainty. 

§  719.     Same  continued — how  further  obtained— court  inspection. 

To  obtain  documents  in  evidence,  under  a  subpoena  duces  tecum, 
a  description,  if  possible,  of  such  document  should  be  made  with  such 
reasonable  certainty  as  will  not  necessitate  the  production  of  other 
documents  in  court  not  relevant  to  the  matter  at  issue.  This  often 
becomes  a  difficult  matter,  especially  with  respect  to  telegrams  in  the 
hands  of  telegraph  companies.  As  said,  a  telegram  in  the  hands  of  the 
parties  to  it,  is  as  much  their  private  writings  as  letters  or  other  sim- 
ilar private  documents ;  and  because  they  are  in  the  hands  of  the  com- 
panies for  transmission,  does  not  cause  the  privacies  of  these  to  be  lost 
and  they  can  only  be  obtained  by  a  proper  legal  process.  They  must, 
therefore  be  relevant  to  the  matter  at  issue  before  they  can  be  obtained 
under  a  subpoena  duces  tecum.  Documents  in  the  hands  of  private  per- 
sons or  corporations  may  not  be  so  difficult  of  description,  but  the 
number  of  telegi'ams  in  the  hands  of  telegraph  companies  are  general- 
ly so  very  numerous  that  a  rule  describing  the  certainty  with  which 
tiie  documents  in  the  hands  of  the  first  kind,  would  doubtless  be  so 
comprehensive  as  to  embrace  many  messages  which  would  be  irrele- 
V9nt  to  the  matter  at  issue ;  so  the  rule  in  this  respect  should  there- 
•  f or6  be  more  specific.  It  is  true,  as  stated,  that  it  is  difficult  to  des- 
cribe the  documents  or  telegrams  in  the  hands  of  telegraph  companies 
with  such  accuracy  every  time  as  to  prevent  the  production  of  some 
which  are  irrelevent,  but  the  greatest  degree  of  accuracy  under  the 
circumstances  should  be  made ;  and  if  there  should  be  some  such  pro- 
duced with  those  relevent  to  the  issue,  the  court,  on  inspection  of 
same,  should  not  admit  their  disclosure  in  evidence. 

§  720.     Rule  for  describing  message  in  writ. 

This  question  is  a  matter  of  such  great  difficulty  of  comprehension 
that  the  courts  are  not  at  all  hai-monious  in  their  opinions,  and  it  has, 
theretofore,  become  almost  impossible  to  lay  down  a  fixed  rule  which 


6S4  TELEGRAPH  AXD  TELEPHONE   COMPANIES.  \_^    720 

would  be  applicable  in  cverv  particular  case,  but  each  case  must  be 
considered  somewhat  alone.  In  nearly  every  case  where  the  party  who 
has  the  writ  issued  cannot  specify  with  accuracy,  messages  relevant  to 
the  matter  at  issue,  yet  he  generally  knows  the  names  of  the  parties 
to  the  messages,  the  places  from  and  to  which  they  are  sent,  the  sub- 
ject-matter about  which  they  have  reference,  and  the  time  of  send- 
ing. If,  then,  these  writs  contain  with  reasonable  certainty  these  es- 
sential facts,  the  company  will  have  sufficient  notice  as  to  what  mes- 
sages are  desired  and  can,  therefore,  be  compelled  to  produce  such 
in  a  court  of  justice.  In  accordance  with  this  rule,  the  following 
illustrated  cases  may  tend  to  further  show  when  the  specifications 
contained  in  these  Avrits  are  valid  and  when  invalid. 

§  721.     Same  continued — illustrations — valid  services. 

A  writ  of  duces  tecum  served  upon  a  telegraph  company,  containing 
the  following  demands  for  messages,  was  deemed  valid  :^^  "Copies 
of  all  telegTams  received  through  the  office  of  the  Western  Union 
TelegTaph  Company  at  Long  Branch,  in  the  State  of  jSTew  Jersey, 
from  June  15  to  Sept.  15,  1874,  and  from  Jime  15  to  September, 
1875,  addressed  to  General  C.  E.  Babcock,  signed  John  McDonald, 
John  A.  Joyce,  John,  or  J.,  with  books  showing  the  delivery  of  the 
same ;  all  telegTams  sent  from  Long  Branch  through  said  office  dur- 
ing said  months,  signed  O.  E.  Babcock,  O.  E.  B.,  Bab.,  or  B.,  ad- 
dressed to  John  McDonald,  or  John  A.  Joyce,  St.  Louis,  Mo.,  or 
Ripon,  "Wisconsin ;  all  telegrams  sent  through  the  office  of  said  com- 
pany at  the  City  of  'New  York  upon  the  9th,  10th,  or  12th  days  of 
December,  1874,  signed  John  McDonald,  John  Mac,  or  Mc,  address- 
ed to  John  A.  Joyce,  St.  Louis,  Mo.,  or  General  O.  E.  Babcock,  Wash- 
ington, D.  C. ;  also,  copies  of  all  telegrams  received  at  the  City  of 
l^ew  York,  from  said  City  of  St.  Louis,  on  the  26th,  27th,  28th,  and 
20th  days  of  October,  1874,  addressed  to  Mr.  John  A.  Joyce,  Mrs. 
Kate  Joyce,  Kate  Joyce,  or  Kate  M.  Joyce,  together  with  books  show- 
ing delivery  of  same." 

'•U.   S.  V.   Babcock,   3   Dill.    (U.   S.) 
566. 


<§    722]  I'KIVILEGED    COMMUXICATIONS.  685 

§  722.     Same  continued — when  invalid. 

On  the  otlier  lumd,  a  writ  containing'  the  following  demand  for 
messages  was  held  invalid:*"  ^'Dispatches  between  Dr.  J.  C.  Xidelet 
and  A.  B.  Wakefield,  and  William  Ladd  and  J.  C.  Xidelet,  and  Wil- 
liam Ladd  and  Dr.  Xidelet,  between  Wiirnii  McChester  and  A.  B. 
Wakefield,  between  Warren  McChester  and  J.  C.  Xidelet,  between 
the  latter  and  John  S.  Phelp.s,  between  A.  B.  Wakefield  and  John  S. 
Phelps,  between  the  latter  and  William  Ladd,  and  between  George 
W.  Anderson  and  A.  B.  Wakefield,  sent  or  received  by  or  between 
any  or  all  of  said  parties,  within  fifteen  months  last  past."  Again, 
a  Avrit  containing  a  demand  for  all  messages  sent  from  or  received  at 
a  certain  telegTa])h  office  between  the  sixth  and  twentieth  days  incln- 
sive  of  a  certain  iiionth,  was  deemed  to  be  invalid. 

"Brown  Ex.  parte.   72  Mo.  83,  over- 
ruling, 7  Mo.  App.  484. 


CHAPTER  XXXI. 

CONTRACTS  BY  TELEGRAM. 

§  723.  In  general. 

724.  Alteration  of  telegram  does  not  affect  rule. 

"725.  When  not  the  result  of  the  company's  negligence. 

726.  Same  continued — private  institution — does  not  effect. 

727.  What  must  contain. 

728.  When  offer  is  complete. 

729.  Order  made  by  telegram. 

730.  Communication  both  by  post  and  telegraph. 

731.  When  contracts  take  effect. 

732.  There  must  be  a  distinct  and  definite  offer. 

733.  Offer  requiring  actual  receipt  of  acceptance. 

734.  Same  continued — how  request  implied. 

735.  Acceptance  must  be  made  within  time. 

736.  Revocation  of  offer. 

737.  Contract — what  law  governs. 

738.  Telegraph  company  ordinarily  the  agent  of  sender. 

739.  Sender  bound  on  message  as  received. 

740.  Within  the  meaning  of  the  statute  of  frauds. 

741.  Exception  to  the  rule. 

742.  English  rule. 

743.  Telegraph  company  an  independent  contractor. 

744.  Same  continued — may  be  sued. 

§  723.     In  general. 

In  creating  a  contract,  the  negotiations  pertaining  to  same  may  be 
conducted  by  letter,  as  is  very  common  in  mercantile  transactions.^ 
The  contract  is  complete  when  the  an.swer,  containing  the  acceptance 
of  a  distinct  proposition,  is  dispatched  by  mail  or  otherwise,  pro- 
vided it  is  done  with  due  diligence  after  the  receipt  of  the  letter  con- 
taining the  proposal,  and  before  any  intimation  is  received  that  the 
offer  has  been  withdra^vm.  Mailing  the  answer  containing  the  ac- 
ceptance and  thus  placing  it  beyond  the  control  of  the  party,  is  valid 
as  a  constructive  notice.^    As  has  been  seen,  there  is  no  material  dif- 

^  Kimball  v.   Moreland,   .55  Ga.    164:  382;  Patrick  v.  Bowman,  149  U.  S.  411, 

Dana  v.  Short,  81  111.  468;  Thomas  L.  13  St.  Ct.  Rep.  866,  37  L.  Ed.  790. 

&  T.  Co.  v.  Beville,  100  Ind.  309;  Col-  '2   Kent  Com.   12th   Ed.  477. 
lege  Mill  Co.  v.  Fidler,58  S.  W.  (Tenn.) 

(686) 


^  724] 


COXTKACTS  BY   TELEGRAM, 


687 


fereiico  in  communications  carried  on  by  telegraph  and  correspond- 
ence conducted  through  the  mail ;  it  is,  therefore,  generally  held, 
that  the  same  law  is  applicable  to  both.^  These  facts  being  true,  there 
is  no  reason — and  it  is  generally  so  held  ^ — why  contracts  cannot  be 
as  easily  negotiated  by  the  medium  of  the  telegraph  as  through  the 
mail,  and  be  governed  by  the  same  rules  of  law  applicable  to  the 
latter.'* 


§  724.     Alteration  of  telegram  does  not  affect  rule. 

It  is  true  that  the  terms  of  a  contract  are  more  liable  to  be  changed 
or  altered  if  conveyed  by  telegram  than  they  would  be  should  they 


'Illinois. — Haas  v.  Myers,  111  111. 
421,  53  Am.  Eep.  034;  Cobb  v.  Force, 
38  111.  App.  255. 

Indiana. — Miller  v.  Nugent,  12  Ind. 
App.  348,  40  X.  E.  282. 

Kentucky. — Calhoun  v.  Atchinson,  4 
Bush  261,  96  Am.  Dec.  299. 

Maine. — True  v.  International  Tel. 
Co.,  60  Me.  9,   11  Am.  Rep.  156. 

Maryland. — Curtis  v.  Gibney,  59  Md. 
131. 

Missouri. — Whaley  v.  Hinchnian,  22 
Mo.  App.  483. 

^eio  Jersey. — ^Hallock  v.  Commercial 
Ins.  Co.,  26  N.  J.  L.  268. 
'  New  York. — Beach  v.  Raritan,  etc., 
R.'Co.,  37  N.  Y.  457;  Schouberg  v. 
Chemy,  3  Hun  677;  Trevor  v.  Wood 
41  Barb.  255  (reversed  in  36  N.  Y. 
307,  1  Transcr.  App.  248,  93  Am.  Dec. 
511);  Marshall  v.  Eisen  Vineyard  Co., 
7  :\Iisc.  674,  28  N.  Y.  Sup.  62,  58  N. 
Y.  St.  375. 

Tennessee. — College  Mill  Co.  v.  Fed- 
ler,  58  S.  W.  382. 

United  States. — ^Minnesota  Linseed 
Oil  Co.  v.  Collier  White  Lead  Co.,  4 
Dill.  431,   17  Fed.  Cas.  No.   9035. 

England. — Stevenson  v.  ilcLean,  5 
Q.  B.  D.  346,  49  L.  J.  Q.  B.  701.  42  L. 
T.  Rep.  U.  S.  897. 

Canada. — Thorne  v.  Barwick,  10  U. 
C.  C.  P.  369;  Marshall  v.  Jamison,  42 
U.  C.  Q.  D.  115. 


*Meinett  v.  Snow,  3  Idaho  112;  Rob- 
inson Match  Works  v.  Chandler,  575; 
Richmond  v.  Sandburg,  77  Iowa  255, 
42  N.  W.  184;  Post  v.  Davis,  7  Kan. 
App.  217;  Franklin  Bank  v.  Lynch,  52 
Md.  279,  36  Am.  Rep.  375;  Brawer  v. 
Show,  168  Mass.  198,  46  N.  E.  617,  60 
Am.  St.  Rep.  387;  Taylor  v.  Steam- 
boat Robert  Campbell,  20  Mo.  254 ; 
Hammond  v.  Beeson,  15  S.  W.  (Mo.) 
1000;  Isaac  Joseph  Iron  Co.  v.  Rich- 
ardson, 38  U.  N.  C.  (Pa.)  487;  Eckert 
V.  Schoch,  155  Pa.  St.  530;  26  Atl.  654; 
Short  V.  Thredgill,  3  Tex.  App.  Cas. 
206;  Duble  v.  Botts,  38  Tex.  312; 
Durkee  v.  Vermont  Cent.  R.  Co.,  29  Vt. 
127;  Wells  v.  Milwaukee,  etc.,  R.  Co., 
30  Wis.  605;  Saveland  v.  Green,  40 
Wis.  431 ;  Utley  v.  Donaldson,  94  U.  S. 
29;  Alford  v.  Wilson,  20  Fed.  96; 
Central  Trust  Co.  v.  Wabash,  etc.,  R. 
Co.,  38  Fed.  561 ;  Garrettson  v.  Atchi- 
son Bank,  39  Fed.  103,  7  L.  R.  A.  428, 
47  Fed.  867,  affd.  (C.  C.  A.)  51  Fed. 
168;  Schultz  v.  Phoenix  Ins.  Co.,  77 
Fed  375;  Andrews  v.  Schrieber,  93 
Fed.  367. 

"  Minnesota  Linseed  Oil  Co.  v.  Collier 
White  Lead  Co.,  4  Dill.  (U.  S.)  431; 
Trevour  v.  Wood,  30  N.  Y.  307,  93  Am. 
Dec.  511;  Shaveland  v.  Green,  40  Wis. 
431. 


68S  TELEGRAPH  AXD   TELEPHO^fE   COMPANIES.  [<§,    724 

be  sent  by  mail.  In  the  course  of  communication  of  news  by  tele- 
gram, there  are  many  hindrances  to  be  encountered  which  are  often 
unavoidable.  The  wires  of  the  company  may  often  become  heavily 
charged  with  electricity  as  a  result  of  an  abnormal  atmospheric  condi- 
tion, and  this  fact  always  has  the  effect  of  disturbing  the  communica- 
tion of  news  so  as  to  prevent  a  correct  transmission ;  the  same  effect 
will  be  produced  as  a  result  of  the  wires  being  covered  with  ice  or 
sleet,  or  when  they  have  become  crossed.  So,  also,  the  communication 
conducted  by  the  latter  means  is  more  often  interfered  with  by  acts 
of  the  public  enemy,  or  by  strikes  of  the  company's  employees. 
It  is  also  a  more  difficult  way  of  transmitting  news,  and  unless  the 
employees  are  skilled  and  experienced  workmen,  alterations  or 
changes  in  the  messages  are  more  likely  to  be  made  than  if  the  same 
had  been  communicated  by  mail.  The  fact  that  an  alternation  has 
been  made  does  not,  however,  change  the  application  of  the  law  to 
•these.  The  messages  as  delivered  to  the  addressee  contains  the  terms 
of  the  contract  upon  which  he  must  act,  provided  the  same  is  done  in 
good  faith.  While  the  sender  of  the  message  is  bound  by  the  terms 
of  the  contract  as  received,  yet  he  may  have  recourse  against  the  com- 
pany for  negligently  transmitting  the  message.® 

§  725.     When  not  the  result  of  the  company's  negligence. 

It  must  be  understood,  that  the  above  rule  only  applies  where  the 
alteration  of  the  telegram  has  been  the  result  of  the  negligent  act 
of  the  company  in  transmission  and  such  as  it  would  be  liable  for. 
We  have  said  elsewhere,  that  if  a  loss  has  occurred  in  the  transmis- 
sion of  messages  on  the  company's  lines  by  the  act  of  God  or  the  pub- 
lic enemy,  the  latter  would  not  be  liable.  Then,  if  the  alteration  in 
the  telegram  is  the  result  of  any  of  these  causes,  and  not  that  of  the 
comjiany's  negligence,  the  sender  will  not  be  liable.  In  other  words, 
if  a  telegram,  containing  the  terms  of  a  contract,  has  been  altered 
in  any  material  way  in  its  transmission  as  a  result  of  the  act  of  God 
or  the  public  enemy,  the  sender  cannot  be  held  l)Ound  by  the  terms  of 
the  contract  in  its  altered  state  as  accepted  by  the  addressee.     It  is  no 

"  West.  U.  Tel.  Co.  v.  Shotter,  71  Ga.  Magie  v.  Herman,  50  Minn.  424,  52 
760;  Aver  v.  West.  U.  Tel.  Co.,  79  Me.  N.  W.  909,  36  Am.  St.  Rep.  660;  Save- 
493,   10  Atl.  495,  1  Am.   St.  Rep.  353;       land  v.  Green,  40  Wis.  431. 


<§  727]  CONTEACTS  BY  TELEGRAM.  689 

contract,  as  the  minds  of  the  contracting  parties  have  never  come 
together,  either  through  themselves  or  through  the  instrumentality  of 
these  companies  as  an  agency.  It  is  true,  that  a  question  of  this  kind 
would  seldom  occur.  Where  these  companies  are  interfered  with  in 
the  transmission  of  news  by  such  unavoidable  hindrances,  the  general 
observation  is,  that  a  complete  failure  has  resulted  in  sending  the 
news. 

§  726.     Same  continued — private  institution — does  not  effect. 

The  same  law  is  applicable  to  the  creation  of  contracts  whether 
they  have  been  negotiated  by  mail  or  by  telegram,  and  this,  too,  not- 
withstanding the  fact  that  the  telegraph  companies,  unlike  the  pest- 
office,  are  private  institutions,  owned  and  operated  by  private  individ- 
uals."^ As  was  said  by  an  able  text-^v^ite^  on  this  subject:  "This  dis- 
tinction is  immaterial,  it  seems,  upon  the  question  whether  either  a 
telegraph  company  or  the  post  office  is  the  agent  of  a  private  indi- 
vidual to  complete  a  contract  in  his  behalf.  A  telegraph  company  is 
employed  to  commimicate  a  certain  message.  It  neither  undertakes, 
nor  is  authorized  to  go  further,  and  effect  as  an  agent,  the  purposes 
for  which  the  communication  of  that  message  is  desired  by  the  em- 
ployer.    It  is  simply  a  forwarder  of  messages."^ 

§  727.     What  must  contain. 

In  order  that  a  contract  may  be  negotiated  through  correspondence 
or  by  mail,  the  letters  pertaining  to  such  must  contain  sufficient  mat- 
ter to  show  that  an  offer  has  been  made  and  accepted.  When  the  car- 
dinal points  of  a  proposed  contract  are  definitely  agreed  upon  by  let- 
ter, the  mere  fact  that  in  the  course  of  the  correspondence  reference 
has  been  made  to  a  more  formal  agreement  will  not  deter  the  court 
from  considering  the  agreements  arrived  at  by  the  letters  as  conclud- 
ed. The  same  rule  applies  to  contracts  made  by  telegram.  If  the 
telegrams  in  regard  to  such  contract  contain  sufficient  elements  to  con- 
stitute a  contract,  and  it  is  evident  from  these  that  the  contract  has 

^Dickson  v.  Renters'  Tel.   Co.,  2   C.  ^Grav  on  Tel.  §113. 

V.   D.    62,    19    Moak,    313,    aff'd.    3    C. 
P.  D.  1,  30  ]\roak.  1. 

T.  &  T.— 44 


690  TELEGKAPH  AXD   TELEPHONE   COMPANIES.  [§    727 

been  acceptedj  the  parties  will  be  bound  bj  such  contract,^  although, 
during  the  connnunication,  more  formal  contracts  may  have  been  re- 
ferred to ;  and  a  court  would  not  hesitate  to  consider  the  agreements 
arrived  at  by  telegram  as  concluded.  ^"^  It  is  presumed  that  if  there 
are  two  conflicting  contracts  made  by  the  same  parties,  at  different 
times  in  regard  to  the  same  subject-matter,  the  last  made  should  be 
more  valid  and  enforcible.  Where,  however,  the  contract  is  to  be 
made  out,  partly  by  telegTams  and  partly  by  parol  evidence,  the  whole 
becomes  a  question  for  the  jury.-^^ 

§  728.     When  offer  is  complete. 

When  an  offer  or  proposition  is  made  by  mail  or  by  telegram,  it  is 
not  complete  until  it  has  been  delivered  to  the  sendee.  The  party 
making  an  offer— the  same  to  be  delivered  by  this  means — appoint 
this  agency  to  make  the  delivery.  The  postal  system  or  telegraph  be- 
ing an  agent  of  the  sender,  the  offer  is  not  complete  so  long  as  it  re- 
mains in  the  hands  of  the  agent,  but  so  soon  as  it  is  delivered  to  the 
party  to  whom  the  offer  is  made,  it  then  becomes  complete.  If  there 
are  any  delays  or  mistakes  made  during  the  transmission  of  the  offer, 
the  party  sending  same  must  suffer  the  consequence.^^ 

§  729.     Order  made  by  telegram. 

An  order  for  goods  or  merchandise  may  be,  and  often  is,  made  by 
telegram.  The  question  which  we  desire  to  discuss  in  this  connection 
is.  When  does  the  order  take  effect  or  become  a  sale,  where  nothing 

•Calhoun  v.  Atchison,    4    Bush    261,  797;   Utley  v.  Donaldson,  54  U.  S.  29, 

9G  Am.  Dec.  299.  24  L.  Ed.     54;     Central     Trust  Co.  v. 

"Cayley  v.  Walpole,  22  L.  T.  N.  S.  Wabash,  etc.,  E.  Co.,  38  Fed.  561;  Al- 
900,  18  W.  R.  782;  Johnson  v.  King,  ford  v.  Wilson,  20  Fed.  96. 
2  Bing.  270,  9  Moore  482.  But  the  tel-  '^  Blockow  v.  Seymour,  17  C.  B.  U. 
egrams  or  letters  or  both,  must  contain  S.  107.  See,  also.  Cox  v.  Maxwell,  151 
sufficient  matter  to  show  that  a  con-  Mass.  336,  24  N.  E.  50;  Short  v. 
tract  was  made  and  accepted:  Brewer  Threadgill,  3  Tex.  App.  Cas.  267;  So- 
V.  Harst,  etc.,  Co.,  127  Cal.  643,  50  L.  ciety  Anonyme,  etc.,  v.  Old  .Jordan 
R.  A.  240n,  60  Pac.  418.  See,  also,  Cox  Min.,  etc.,  Co.,  9  Utah  483,  35  Rac.  492. 
V.  Maxwell,  151  Mass.  336,  24  N.  E.  '^Averill  v.  Hedge,  12  Conn.  424; 
50;  Short  v.  Threadgill,  3  Tex.  App.  Mactier  v.  Fritch,  6  Wend.  (N.  Y.) 
Cas.  268;  Society  Anonyme,  etc.,  v.  103,  21  Am.  Dec.  262;  Frith  v.  Law- 
Old  Jordan  Min.,  etc.,  Co.,  9  Utah  483,  rence,  1  Paige  (N.  Y.)  434;  Adams  v. 
35  Pac.  492;  Lawrence  v.  Milwaukee,  Lendsell,  1  B.  &  Aid.  081,  19  Rev.  Rep. 
etc.,   R.   Co.,   84   Wis.    427,   54   N.    W.  415. 


<^    730]  CONTRACTS   BY   TELECiKAM.  691 

is  said  in  the  message  in  this  regard  ?  If  the  message  should  request 
that  a  reply  be  given  so  as  to  notify  the  sender  whether  the  order 
could  be  filled,  there  would  be  no  doubt  about  when  the  order  would 
take  effect.  The  order,  in  this  instance,  would  be  filled  when  the 
reply  was  given  to  the  telegraph  company.  Tlie  difficult  (piestion  to 
be  determined  is,  when  will  the  sale  be  complete  when  nothing  is 
said  about  a  reply  ?  If  the  goods  arc  to  be  delivered  to  the  carrier 
by  the  party  on  whom  the  order  is  made,  and  the  carrier  is  desigTiated 
in  the  order,  it  seems  that  a  delivery  to  the  carrier  or  warehouse  com- 
pany would  Ix-  a  sufficient  acceptance  of  the  order.  If,  however,  no 
carrier  is  mentioned  in  the  order,  but  other  goods  which  have  been 
purchased  by  the  same  party  were  delivered  to  a  certain  carrier,  it 
seems  that  the  party  on  whom  the  order  was  made  would  be  justified 
in  delivering  the  goods  to  the  same  carrier,  and  the  acceptance  would 
then  be  complete.  The  circumstances  of  each  particular  case  may  be 
different,  and,  of  course,  under  this  state  of  facts  the  same  rule  would 
not  njiply  to  l^oth. 

§  730.     Communication  both  by  post  and  telegraph. 

In  order  to  create  a  contract  by  means  of  correspondence,  it  is  not 
necessary  that  all  the  negotiations  should  have  been  conducted  by 
post  nor  by  telegraph,  but  it  may  have  been  created  both  by  corres- 
pondence by  post,  and  by  communications  by  telegTaph.  In  other 
words,  some  of  the  communications  may  have  been  made  by  mail  and 
others  by  telegram.  And  it  seems  that  if  it  is  not  necessary  that  the 
contract  should  be  in  writing,  as  required  by  the  statute  of  frauds, 
oral  statements  made  when  the  contracting  parties  are  together,  or 
made  by  telephone,  may  be  used  in  connection  with  the  telegrams  to 
prove  the  contract.  As  it  has  been  elsewhere  discussed,  to  make 
some  contracts  binding,  some  written  memorandum  must  have  been 
kept,  and,  also,  that  a  memorandum  might  be  made  by  telegi-am.  So, 
if  there  have  been  oral  statements  made  respecting  the  creation  of  a 
contract  which  is  required  to  be  in  Avriting,  they  may  be  considered 
in  connection  with  such  telegi-ams  to  explain  the  contract  as  made. 

§  731.     When  contracts  take  affect. 

It  i>  tlie  rule  of  law  that  when  a  contract  is  made  by  means  of  cor- 
respondence tln-ough  the  mail,  the  contract  is  complete  upon  the  post- 


692  TELEGKAPII  AND  TELEPHONE   COMPANIES.  \_^    731 

ing  by  one  party  of  a  letter  addressed  to  the  other,  accepting  the  terms 
offered  by  the  latter,  notwithstanding  the  fact  that  such  letter  may 
never  reach  its  destination.^^  The  reason  of  the  rule  is  obvious.  He 
who  makes  a  proposition  or  an  offer  through  the  mail  impliedly  ap- 
points the  postal  system  his  agent,  and  when  the  other  party  accepts  the 
proposition  or  offer,  and  in  accordance  therewith  delivers  a  properly 
addressed  letter  to  said  agent  to  be  conveyed  to  the  first  party,  the 
acceptance  is  sufficiently  made.  Applying  the  same  rule  to  contracts 
negotiated  by  means  of  the  telegraph,  we  find  it  is  generally  held 
that  when  an  unconditional  offer  is  made  through  this  means,  and  a 
telegram  containing  an  acceptance  of  the  terms  of  such  contract  is 
delivered  to  the  telegraph  company  by  the  offeree,  the  contract  is 
complete  whether  the  message  does  or  does  not  reach  the  other 
party.  ^* 

§  732.     There  must  be  a  distinct  and  definite  offer. 

In  order  for  the  contract  to  be  sufiiciently  created  by  telegram,  the 
offer  therein  must  be  very  distinct  and  definite.  In  a  case  arising  on 
this  point,  it  appeared  that  the  plaintiff's  agent  wrote  to  him  stat- 
ing that  he  had  "hit  on"  a  desirable  piece  of  property  which  could 
be  bought  on  certain  terms,  and  advising  him  to  respond  by  wire  if 
a  purchase  was  desired.  Plaintiff  replied,  instructing  the  agent  to 
close  the  contract,  but  the  telegram  was  not  delivered  for  several  days 
and  the  opportunity  to  make  the  purchase  was  lost.      It  was  held 

"Blake  v.  Ins.  Co.,     67     Tex.     160;  157;  McCulloch  v.  Eagle  Ins.     Co.,     1 

Butterfield  v.  Spencer,  1  Basw.  (N.  Y.)  Pick.  278. 

1;   Maetier  v.  Frith,  9  Wend.    (N.  Y.)  Neiv  Yor/.-.— Trevor  v.     Wood,     36  N. 

103;  Vassar  v.  Camp.  14  Barb.  (N.  Y.)  Y.  307,  93  Am.  Dec.  511. 

354.  Pennsylvania. — Hamilton  v.     Lycoin- 

'*  Illinois.— Cohh   v.    Force,      38      111.  ing  Mut.  Ins.  Co.,  5  Pa.  St.  339. 

App.  255.    Compare  Mactay  v.  Harvey,  Wisconsin. — Baker  v.   Holt,   56   Wis. 

90  111.  525,  30  Am.  Rep.  35.  100,  14  N.  W.  8. 

Maine. — True   v.    International     Tel.  United     States. — Minnesota     Linseed 

Co.,  60  Me.  9,  11  Am.  Rep.  156.  Oil   Co.  v.   Collier  White  Lead  Co.,  4 

Maryland. — Wheat,  v.  Cross,  31  Md.  Dill.  431;   Taylor  v.  Merchants'     Fire 

91,  1  Am.  Rep.  28.  Ins.  Co.,  9  How.  390. 

Massachusetts. — /S'quire  v.  West.     U.  England. — Stevenson     v.  McLean,     5 

Tel.  Co.,  98  Mass.  232,  93     Am.     Dec.  Q.   B.  D.   340;    Household  F.,  etc.,  Co. 

v.   Grant,   4   Ex.   D.   216. 


<^  734]  CONTRACTS  BY  TELEGRAM.  693 

that  the  correspoudence  did  not  constitute  a  contract,  there  having 
been  no  distinct  offer. ^^  In  another  case,  similar  to  this,  a  person 
made  another  an  offer  to  purchase  his  land,  to  which  the  owner  of 
the  land  replied  by  telegTaph,  ''Will  accept  $900  if  not  sold  other- 
wise." Soon  afterwards,  the  owner  sold  the  land  to  a  third  party 
with  whom  he  had  been  negotiating  before  he  sent  the  telegram.  It 
^\•as  held  that  the  message  did  not  constitute  an  absolute  agreement 
to  sell.^*^ 

§  733.     Offer  requiring  actual  receipt  of  acceptance. 

The  rule  that  a  letter  or  telegram  of  acceptance  takes  effect  when 
it  is  mailed  or  delivered  to  the  telegraph  company,  does  not  apply,  of 
course,  where  the  offer  requires  actual  receipt  of  the  letter  or  tele- 
gram of  acceptance ;  as  where  it  says :  "Unless  I  receive  your  answer 
by  a  certain  time,  I  will  not  consider  myself  bound," ^"^  or  where  the 
offerer  requests  an  answer  by  telegraph,  "yes"  or  "no,"  and  states 
that  unless  he  receives  the  answer  by  a  certain  day  he  will  conclude 
"no."  It  was  held  in  this  case  that  the  offer  was  made  dependent 
upon  the  actual  receipt  and  not  the  mere  sending  of  the  telegram. ^^ 
Such  a  condition  may  in  some  cases  be  implied  from  the  nature  and 
form  of  the  previous  negotiations.^^  Thus,  where  the  message  re- 
quested the  offeree  to  answer  "yes"  or  "no,"  this  shows  that  it  was 
in  the  contemplation  of  the  parties  that  this  telegram  should  not 
merely  have  been  deposited  for  transmission,  but  that  it  should  have 
been  transmitted  and  been  received  before  there  could  arise  between 
the  parties  any  complete  contract. 

§  734.     Same  continued — how  request  implied. 

The  request  or  authorization  to  communicate  the  acceptance  of  the 
offer  by  telegraph  may  be  implied  in  either  of  two  ways,  viz.:  (1) 
the  telegraph  is  used  to  make  the  offer,  as  where  a  person  makes  an 
offer  to  another  by  a  telegraphic  message  and  says  nothing  as  to  how 

"Alexander  v.  West.  U.  Tel.  Co.,  76  '"Lewis  v.   Browning,   130  Mass.    173 

Miss.  386,  7  So.  280.  '^Langdell  on  Contracts,  §§6,  11,  15. 

'•Ford  V.  Gebhardt,     114     Mo.     298.  '"Haas  v.  Myers,  111  111.  421,  53  Am. 

See,  also,  West.  U.  Tel.  Co.  v.  Way,  83  Rep.  634. 
Ala.  542,  4  So.  844;     Breckinridge     v. 
Croker,  78  Cal.  529. 


694  TELEGRAPH  AXD   TELEPIIOXE   C0:MPAXIES.  [^    734 

tlie  answer  shall  be  sent;  and  (2)  where  the  circumstances  are  such 
that  it  must  have  been  in  the  contemplation  of  the  parties  that,  ac- 
cording to  the  ordinary  usage  of  such  parties,  the  telegraph  might  be 
used  as  a  means  for  such  purposes.-"  Therefore,  where  an  offer  is 
made  by  post,  it  is  presumed  that  the  acceptance  of  the  offer  shall 
be  made  by  post ;  but  if  the  offer  is  made  by  telegTam,  it  is  presumed 
that  the  acceptance  should  be  made  by  telegraph. 

§  735.     Acceptance  must  be  made  within  time. 

In  order  for  an  acceptance  to  be  good,  it  must  be  made  within  tlie 
time  allowed  in  the  offer.  If  there  is  no  such  time  specified,  it 
should  be  made  within  a  reasonable  time  after  the  receipt  of  the  offer. 
An  offer  comes  to  an  end  at  the  expiration  of  the  time  given  for  its  ac- 
ceptance, a  limitation  of  time  within  which  an  offer  is  to  run  being 
equivalent  to  the  withdrawal  of  the  offer  at  the  end  of.  the  time 
named.^^  But  Avhen  no  time  is  fixed  in  the  offer,  it  expires  at  the 
end  of  a  reasonable  time.--  What  is  a  reasonable  time,  depends  upon 
the  nature  of  the  offer  and  the  circumstances  of  the  particular  matter 
about  which  the  offer  is  made.^^  Thus,  if  it  should  be  in  regard  to  the 
sale  of  land,  it  seems  that  it  is  not  necessary  that  so  prompt  a  time 
be  exercised  as  it  would  in  case  it  were  concerning  the  sale  of  chattels, 
stocks  or  perishable  property.-'*    In  a  case  bordering  on  this  point,  a 

2»  Hawthorn  v.   Frasev.   2   Ch.   27.   Gl  K.  549,  28  Am.  Dec.  372.     When  a  tele- 

L.  J.  Ch.  373,  66  L.  T.  Rep.  U.  S.  439.  gram   making  an   offer  and  demanding 

40  Wkly.  Rep.  434.  an  immediate  acceptance  is  received  at 

^  ^laclay  v.  Harvey,  90  111.  52,5,     32  10  o'clock  Saturday  night,  the  sender  is 

Am.  Rep.  35;  Cannon  River  Mfg.  Assoc.  not  bound  by  an  acceptance  sent  on  the 

V.  Rogers,  42  Minn.     123,     43     N.     W.  following  Monday.     James   v.     Marion 

792,   18  Am.   St.  Rep.   497;   Mactier  v.  Fruit  Jar,  etc..  Co.,  69  Mo.  App.  207. 
Frith,  6  Wend.   103,  21  Am.  Dec.  262:  =^Averill  v.  Hedge,   12     Conn.     424; 

Union   Nat.   Bank  v.   Mills,   106   N.   C.  Lovemon  v.  Jordan,  56  111.  204;  Morse 

347,  11  S.  E.  321,  19  Am.  St.  Rep.  538;  v.   Bellows,  7   N.  H.  549,  28  Am.  Rep. 

Weaver  v.   Burr,  31   W.  Va.  736,  8  S.  752. 
E.  743,  3  L.  R.  A.  94.  ''^Kempner   v.   Cohn,   47   Ark.   519,    1 

"Sanford  v.  Howard,  29  Ala.  684,  6S  S.  W.  869,  58  Am.  Rep.  775;   Park  v. 

Am.  Dec.     101;     Ferrier    v.     Sover,  63  Whitney,  148  Mass.  278,  19  N.  E.  161 ; 

Iowa  484,  19  N.  W.  288,  50  Am.  Rep.  Minnesota  Linseed  Oil  Co.     v.     Collier 

752;    Mitchell   v.   Abbott,   86   Me.    338,  White   Lead   Co.,   4   Dill.   431,    17    Fed. 

29  Atl.   1118,  41  Am.  St.  Rep.  559,  25  Cas.   No.   9635. 
L.   R.  A.  503;   Morse  V.  Bellows,  7   N. 


<§    736]  CONTRACTS   BY   Ti:LEGKA>r,  695 

person  went  west  to  purchase  a  drove  of  cattle.  If  there  was  an  op- 
portunity to  purchase  at  a  reasonable  price  he  was  to  wire  another 
person  of  same  and  the  latter  was  to  arrange  for  part  of  the  payment 
at  a  certain  time.  The  latter  did  not  make  such  arrangement  at  the 
time,  but  came  later  and  claimed  his  interest  in  the  purchase.  It  was 
held  that  he  was  too  late.  "It  was  essential  that  he  should  have  per- 
formed before.  .  .  .  That  he  could  not,  after  leading  Myers  to  think 
that  he  did  not  want  an  interest  in  the  purchase,  and  the  latter  and 
Martin  raising  and  paying  all  the  purchase  money  required,  come  in 
aftenvards,  though  only  the  next  day,  and  then  offer  to  pay  his  share 
of  the  money,  and  demand  the  right  of  participation  in  the  purchase. 
To  have  then  admitted  Haas  into  the  purchase  would  have  been  but 
a  matter  of  favor  with  Myers,  not  of  obligation."-^ 

§  736.     Revocation  of  offer. 

It  is  a  general  rule  that  where  an  offer  is  made,  not  under  seal, 
it  may  be  revoked  at  any  time  before  acceptance,  unless  there  is  a 
binding  agreement  to  hold  it  open,  but  it  cannot  be  revoked  after  ac- 
ceptance.-''^ In  order  that  the  offer  should  be  revoked,  it  is  necessary 
that  the  same  be  communicated  to  the  offeree  before  he  accepts  the 
offer.-"  Formal  notice  of  such  revocation  is  not  always  necessary. 
It  is  sufficient  if  the  person  making  the  offer  makes  some  act  inconsis- 
tent with  it,  as  where  he  sells  the  property  to  another  person,  and  the 
offeree  knows  of  such  sale  before  he  accepts.-^  If  an  offer  is  sent  by 
telegTam  and,  in  accordance  to  the  regiilations  of  the  company's  office, 
the  sender  is  unable  to  recall  his  telegram,  he  may  do  so  by  other 
moan=;  if  possible  before  it  is  accepted  :'-•'  as,  by  a  second  telegram 

^Haas  V.  Myers,  111  111.  421,  53  Am.  ild.  380,   17  Atl.  389,  14  Am.  St.  Rep. 

Rep.  634.  364;    Waterman   v.   Banks,   144   U.     S. 

=•  Cooper   V.    Lansing   Wheel    Co.,    94  394,    12   Sup.   Ct.   Rep.   640,   30  L.   Ed. 

Mich    272,   54   N.   W.    39.   34   Am.    St.  479. 

Rep.   341;    Ide   v.   Leiser.    10   Mont.   5.  =«Kempner  v.   Cohn,   47   Ark.   519,    1 

24  Pac.  695,  24  Am.  St.  Rep.  17;   For-  S.  W.  869.  58  Am.  Rep.  775;  Coleman 

ry  V.  Mt.  Hope  Iron  Co.,  15  K.  I.  380.  v.  Applegarth,  68  Md.  21.   11  Atl.  284. 

5  Atl.  632,  2  Am.  St.  Rep.  902.  0  Am.  St.  Rep.  417. 

"Arkridge   v.   Glover.   5   Stew.   &    P.  "  Xewcomb  v.   De  Roose,   2   E.  &  E. 

(Ala.)    204,  26  Am.  Dee.  44;  Kempner  271,  6  Jur.  U.  S.  08,  29  L.  J.  Q.  B.  4. 

V.  Cohn,  47  Ark.  519.  1   S.  W.  869.  58  S  Wkly.  5,  105  E.  C.  L.  271. 
Am.  Rep.  775;  Damhnianu  v.  Lonitz,  70 


696  TELEGRAPH  AND  TELEPHOiS^E   COMPANIES.  ["<§    736 

sent  by  the  same  means  and  delivered  at  tlie  same  time  with  the 
first  telegram  ;^^^  or,  by  a  telegram  received  by  the  offeree  before  he 
has  delivered  his  telcgTam  to  the  company  accepting  the  offer.^^  But 
a  revocation  of  an  offer  not  actually  communicated  to  the  person  to 
whom  the  offer  is  made,  or  which  is  communicated  to  him  after  the 
acceptance  has  been  sufficiently  made,  is  inoperative.^^  So  it  follows, 
that  a  revocation  of  an  offer  made  by  telegram  can  have  no  effect,  un- 
less the  same  is  communicated  to  the  offeree  before  the  acceptance.^^ 

§  737.     Contract — what  law  governs. 

It  is  the  general  law  of  contracts,  as  discussed  elsewhere,  that  the 
rights  of  the  parties  must  be  governed  by  the  laws  of  the  state  where 
the  property  is  situated  and  where  the  contract  and  conveyance  are 
made,  unless  it  is  clearly  shown  that  the  conveyance  was  intended  to 
take  effect  in  another  state.^^  Thus,  where  a  Mississippi  plantation 
was  leased  in  a  contract  made  by  telegram  to  parties  living  in  the 
State  of  Kentucky,  and  an  action  was  brought  in  the  latter  state  to 
recover  the  rent  which  was  not  stipulated  as  to  when  it  should  be 
paid,  it  was  held  that  the  time  of  payment  must  be  determined  by 
the  laws  and  customs  of  the  state  where  the  land  was  situated,  the 
contract  was  to  be  performed,  the  landlord  lived,  and  where  in  legal 
contemplation  the  contract  was  made.^^ 

§  738.     Telegraph  company  ordinarily  the  agent  of  sender. 

An  agent  may  be  appointed  by  implication.  Thus,  the  appoint- 
ment of  an  agent  may  be  implied  from  the  fact  that  a  person  is  placed 
in  a  situation  in  which,  according  to  ordinary  usage,  he  would  be  un- 
derstood to  represent  and  act  for  another.""  So,  it  can,  in  general, 
])(■  said  that  the  manner  in  which  a  party  treats  one  who  apparently 

*"  Sherwin  v.   Nat.  Cash  Reg.  Co.,  5  See.  also,  Taylor  v.  Merchants'  F.  Ins. 

Colo.  App.  162,  38  Pac.  392.  Co.,  9  How.   (U.  S.)    390. 

=^Re  London,  etc.,  81   L.  T.  Rep.  U.  s*  Wyse   v.   Dandridge,   35   Miss.   G72. 

S.   512.  72  Am.  Dec.   149;  Young  v.  Harris,  14 

=^  Wheat  V.  Cross,  31  Md.  99,   1   Am.  j;.    Monroe    (Ky.)    556,      61    Am.    Dec. 

Rep.   28;    Braner  v.   Show,    168     Mass.  170;    Cialliano  v.  Pierre  &  Co.,   18  La. 

198,    46    N.    E.    617,    60   Am.    St.   Rep.  Ann.  10,  89  Am.  Dec.  643  and  note. 

378.  ^^  Calhoun     v.     Atchinson,     4     Bush 

^'Cobb   V.    Force,   38   111.    App.     255.  (Ky.)   261,  96  Am.  Dec.  299. 

»"  Evans  on  Agency  (Ewell's  Ed.)  23. 


§  738] 


CONTRACTS  BY  TELEGRAM. 


697 


acts  as  hi6  agent,  and  holds  him  out  as  such  to  third  partifs,  will  be  a 
sufficient  implication  of  agency.^'  It  is  a  general  rule  that  when  the 
post  is  used  as  a  means  of  conveying  news  respecting  a  certain  trans- 
action, the  party  first  selecting  the  post  for  such  purpose  impliedly 
appoints  this  instrumentality  a'^  an  agency  for  consummating  the 
transaction  and  it  is  therefore  his  agent.  However,  the  extent  of  em- 
ployment of  such  agent  is  merely  to  convey  the  letter  and  deliver  it 
to  the  other  party  when  called  for.  The  same  rule  applies  to  tele- 
graph companies,  w'hereby  they  are  ordinarily  considered  the  agent 
of  the  party  sending  the  message.^^  The  effect  of  the  rule,  as  has  been 
seen,  is  that  when  an  offer  has  been  made  by  telegraph,  the  contract 
is  complete  at  the  moment  the  acceptance  is  delivered  to  the  company 
for  transmission  to  the  party  making  the  offer.  If  the  acceptance  is 
delayed  or  changed  in  any  way  in  the  transmission,  the  sender  will 
be  bound  nevertheless.^^  He  assumes  responsibilities  for  errors  both 
ways.^® 


*^  South,  etc.,  Alabama  R.  Co.  v. 
Henlein,  52  Ala.  606;  Shaffer  v.  Saw- 
yer, 123  Mass.  204;  Hull  v.  Jones,  69 
Mo.  587;  Singer  Mfg.  Co.  v.  Holdford, 
86  111.  455;  Houghton  v.  Maurer,  55 
Mich.  323;  LoAvell  v.  Williams,  125 
Mass.  439. 

»«Haubelt  v.  Rea,  etc..  Mill  Co.,  77 
Mo.  App.  672. 

">  Georgia.— West.  U.  Tel.  Co.  v. 
Shelter,  71  Ga.  760. 

Illinois.  —  Anheuser-Busch  Brewing 
Assoc.  V.  Hatmatcher,  127  111.  652,  21 
N.  E.,  62,  4  L.  R.  A.  575,  affd.  29  111. 
App.  316.  See,  also,  Haas  v.  Myers, 
111  111.  421,  53  Am.  Rep.  634. 

Maine. — Ayer  v.  West.  U.  Tel.  Co., 
79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep. 
353.  See,  also.  True  v.  International 
Tel.  Co.,  60  Me.  9;  11  Am.  Rep.  156. 

Mansachusetts. — Squire  v.  West.  U. 
Tel.  Co.,  98  Mass.  232,  93  Am.  Dec. 
157. 

Minnesota — Magie  v.  Herman,  50 
Minn.  424,  52  N.  W.  909,  36  Am.  St. 
Rep.  660;  Wilson  v.  Minneapolis,  etc., 
R.  Co.,  31  Minn.  481,  18  N.  W.  291. 


Missouri. — Asheford  v.  Sehoop,  81 
Mo.  App.  539;  Haubelt  v.  Rea,  etc.. 
Mill  Co.,  77  Mo.  App.  672;  Taylor  v. 
Steamboat  Robert  Campbell,  20  Mo. 
254. 

New  Hampshire. — Howley  v.  Whip- 
ple, 48  N.  H.  487. 

New  York. — Denning  v.  Roberts,  35 
Barb.  483;  Rose  v.  United  States  Tel. 
Co.,  3  Abb.  Pr.  U.  S.  408. 

Pennsylvania. —  New  York,  etc.. 
Print.  Tel.  Co.  v.  Dryburg,  35  Pa.  St. 
298,  78  Am.  Dec.  338. 

Texas.— West.  U.  Tel.  Co.  v.  Edsall. 
74  Tex.  329,  15  Am.  St.  Rep.  835. 

Vermont. — Durkce  v.  Vermont  Cent. 
R.  Co.,  29  Vt.  127. 

^Visconsin. — Saveland  v.  Green,  40 
Wis.  431. 

^"Trevor  v.  Wood,  36  N.  Y.  307,  93 
Am.  Dec.  511,  reversing  41  Barb.  (N. 
Y.)  255.  Sec,  also,  ]Magie  v.  Herman. 
50  Minn.  424,  52  N.  W.  909,  36  Am.  St. 
Rep.  060;  Wilson  v.  Minneapolis,  etc., 
R.  Co.,  31  Minn.  483,  18  N.  W.  290; 
Durkee  v.  Vermont  Cent.  R.  Co.,  29 
Vt.   127. 


698  TELEGEAPH  AND   TELEPHONE   COMPANIES.  [^    739 

§  739.     Sender  bound  on  message  as  received. 

If  a  message  is  delivered  to  a  telegraph  company,  containing  an  of- 
fer to  sell  merchandise  at  a  certain  price,  and  the  company  transmits 
it  so  as  to  contain  an  offer  at  a  less  price,  the  sender  is  boimd  to  fur- 
nish the  merchandise  at  the  latter  price,  but  he  may  recover  from  the 
company  the  damages  sustained  by  complying  with  the  order.^^  So, 
also,  if  a  land  agent  leaves  a  message  directed  to  his  principal,  nam- 
Uig  the  price  at  which  the  property  can  be  sold,  and  the  company 
through  error  in  the  transmission  raises  the  price,  and  the  principal 
accepts  the  offer  as  received  and  executes  a  deed  at  that  price,  the 
agent  is  compelled  to  conclude  the  sale  at  the  price  first  named  by  him 
yet  the  company  would  be  liable  to  the  vendor  for  the  difference  be- 
tween the  prices.^ 2  The  reason  why  the  sender  is  bound  by  the  terms 
of  the  message  as  received  is,  that  the  telegraph  company  is  deemed 
his  agent  and  he  is  therefore  bound  by  the  acts  of  such  company  with 
respect  to  the  transmission  and  delivery  of  the  message. 

§  740.     Within  the  meaning  of  the  statute  of  frauds. 

We  have  commented  at  some  length  in  a  separate  chapter  on  the 
statute  of  frauds  with  respect  to  a  written  message,  offered  for  trans- 
mission, being  a  sufficient  writing  to  constitute  a  memorandum  and 
one  which  would  bind  the,  parties  under  such  statute.  We  shall, 
therefore,  be  very  brief  at  this  place  in  discussing  the  part  telegraph 
companies  take  in  effecting  such  results.  The  fact  of  the  telegraph 
company  being  the  agent  of  the  sender,  will  bind  him  by  any  of  the 
former's  acts  in  this  respect.  Thus,  when  the  telegram  is  written  out 
by  the  operator  at  the  receiving  station  and  delivered  to  the  ad- 
dressee, the  act  of  such  operator  in  writing  and  delivering  the  tele- 

"West.  U.  Tel.  Co.  v.     Flint     River  Am.   St.  Rep.   682;    Hays  v.  West.   U. 

Lumber  Co.,  114  Ga.  576,  40  S.  E.  815,  Tel.  Co.,  70  S.  Car.   16,  48  S.  E.  608, 

88  Am.  St.  Rep.  30;  Reed  v.  West.  U.  67  L.  R.  A.  481,  106  Am.  St.  Rep.  731; 

Tel.  Co.,  135  Mo.  001,  34  L.  R.  A.  492,  Pepper  v.  Tel.  Co.,  87  Tenn.  554,  4  L. 

58  Am.  St.  Rep.  609,  37   S.     W.     904.  R.  A.  660,  10  Am.  St.  Rep.  699;  West. 

See,  also,  Hasbrouek  v.  West.  U.  Tel.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21 

Co.,  107  Iowa  160,  77  N.  W.  1034,  70  N.  E.  4,  15  Am.  St.  Rep.  109;  Pearsall 

Am.  St.  Rep.  181;  Rittenhouse  v.  Inde-  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  58 

pendent  Line  of  Tel.,  44  N.  Y.  263,  4  Am.  St.  Rep.  609,  34  L.  R.  A.  492. 
Am.  Rep.  673;  West.  U.  Tel.     Co.     v.  « Id. 

Reals,  56  Neb.  415,  76  N.  W.     903,  71 


-§  742]  CONTRACTS  BY  TELEGRAM.  699 

gram  is  the  act  of  the  sender.-*"'  The  rule  would  not  be  changed  if  the 
sender  fails  to  write  the  message.  If  he  delivers  it  orally  or  com- 
municates it  by  telephone  to  the  company  and  it  is  written  out  by  the 
operator,  the  statute  will  be  sufficiently  complied  with.  This  is  the 
holding  both  of  the  state  and  federal  courts.^-* 

§  741.     Exception  to  the  rule. 

There  are  some  exceptions  to  the  rule  that  the  telegraph  company 
is  the  agent  of  the  sender  in  consummating  business  transactions 
through  the  means  of  such  company.  There  must  be  some  intention 
shown  either  express  or  implied,  that  the  company  is  to  act  as  the 
agent  of  the  sender,  since  if  there  are  any  acts  or  indications  on  the 
part  of  the  addressee  that  the  company  shall  not  be  the  sender's  agent, 
it  will  be  presumed  that  it  acts  as  the  agent  for  the  former.  So,  also, 
if  there  is  a  continued  correspondence  by  telegraph,  it  is  not  pre- 
sumed that  the  party  making  an  offer  or  proposition  has  appointed 
the  company  his  agent,  but  it  is  deemed  the  agent  of  the  party  who 
first  makes  it  the  medium  of  communication.^'^  When  this  is  the 
case,  the  party  making  the  offer  is  not  responsible  for  errors  made  in 
the  transmission,  and  an  aceeptanco  of  the  offer  is  not  complete  until 
it  has  been  actually  delivered  to  the  offerer.  As  it  has  been  seen,  this 
is  not  the  case  when  the  company  acts  as  the  agent  for  the  party  mak- 
ing the  offer.  Another  exception  to  the  rule  that  the  telegraph  com- 
pany is  the  agent  of  the  sender  is,  where  he  uses  such  company  to  con- 
summate the  transaction  at  the  suggestion  of  the  addressee,  or  the 
party  to  w^hom  the  offer  is  made."*^ 

§  742.     English  rule. 

The  rule  in  England  is  dift'eront  from  that  in  the  United  States.  It 
is  held  there  that  the  company  is  not  the  agent  of  the  sender,  and  that 
he  is  not,  therefore,  liable  for  any  errors  made  in  transmission.  The 
addressee  may  have  incurred  gi-eat  expense  and  trouble  by  acting  on 

"See  note  14  for  cases.  001;    Culver  v.   Warren,   30   Kan.   391. 

"j^  13  Pac.  577. 

«Durkee  v.  Vermont   Cent.  R.     Co.,  *«  Smith  v.  Easton,  54  Md.     13S.     39 

29  Vt.  127.       See,     also,     Sullivan     v.  Am.  Rep.  355;  Durkee  v.  Vermont  Cen. 

Kuvkendall,  82  Ky.   483.   56   Am.  Rep.  R.  Co..  29  Vt.  127. 


700  TELEGRAPH  AND  TELEPHONE  COMPANIES.  [§    742 

an  erroneous  message,  still  he  will  be  the  party  to  lose.^'  The  rule 
there  is  accounted  for  by  the  fact  that  the  telegraph  is  part  of  the 
government  service,^^  and  yet  it  seems  that  this  was  not  the  case  at 
the  time  the  decisions  above  cited  were  rendered.^^  This  rule  has 
been  followed  by  a  few  of  our  courts.^ - 

§  743.     Telegraph  company  an  independent  contractor. 

A  telegi-aph  company,  with  respect  to  the  transmission  of  news,  is 
regarded  as  an  independent  contractor,  and  is  liable  to  either  party, 
the  sender  or  the  addressee,  for  its  negligent  transmission.  It  must 
not  be  understood  that  this  statement  is  in  conflict  or  is  inconsistent 
with  the  principles  heretofore  discussed,  that  it  is  the  agent  of  the 
sender.  It  may  be  the  agent  of  the  sender  in  affecting  a  contract  with 
the  addressee,  as  has  been  said,  and,  at  the  same  time,  be  an  inde- 
pendent contractor  with  respect  to  the  contract  made  for  transmitting 
the  necessary  negotiations  to  effect  the  first  contract.  In  other  words, 
if  the  contract  is  negotiated  by  means  of  a  telegraph  company,  the 
latter  is  deemed  the  agent  of  the  party  who  first  uses  this  means  of 
effecting  the  contract,  but,  aside  from  this,  there  is  another  contract 
made  by  such  party  with  the  telegraph  company,  as  the  other  con- 
tracting party,  whereby  it  is  agreed  for  a  valuable  consideration  that 
the  latter  will  transmit  the  news  which  effects  the  making  of  the  for- 
mer contract.  It  is  in  this  sense  we  consider  the  company  an  inde- 
pendent contractor ;  but  it  seems  that  this  distinction  is  not  observed 
by  some.^^  It  is  the  rule,  as  we  have  said  elsewhere,  that,  where  a 
contract  is  negotiated  by  means  of  the  postal  system,  the  latter  is 
deemed  the  agent  of  the  party  who  first  selects  this  means  of  com- 
munication ;  and,  it  is  upon  this  theory,  that  the  telegraph  company 

"  Herkell  v.  Pape  L.  R.  6  Exch.  7,  40  '''  Mississippi.— Shingleur  v.  West.  U. 

]..  J.  Exch.  15,  23  L.  T.  Eep.  U.  S.  419,  Tel.  Co.,  72  Miss.  1030,  48  Am.  St.  Rep. 

19  Wkly.  Rep.  106.  004,  18  So.  425,  30  L.  R.  A.  444. 

*«West.   U.    Tel.    Co.    v.    Shotter,    71  North  Carolina. — Pegram     v.     West. 

Ga.   760.  U.  Tel.  Co.,   100  N.    C.    28,    6    S.    E. 

"8  Joe.  Fish.  Dig.    (Telegraph.)  770,  6  Am.  St.  Rep.  557. 

^Pepper  v.  West.  U.  Tel.     Co.,     87  Tennessee. — Pepper  v.  West.  U.  Tel. 

Tenn.  554,  4  L.  R.  A.  660,  10  Am.  St.  Co.,  87  Tenn.  554,  10  Am.  St.  Rep.  699, 

Rep.  699;  Harrison  v.  West.     U.     Tel.  4  L.  R.  A.  660. 

Co.,  10  Am.  &  Eng.  Corp.  Gas.    (Tex.)  reicas.— Harrison  v.  West.     U.     Tel. 

600.  Co.,  10  Am.  &  Eng.  Cas.  600. 


<^  744]  CONTRACTS  BY  TELEGRAM.  701 

is  considered  the  agent  of  the  sender.  We  think  that  there  is  this  dis- 
tinction— however  unimportant  it  may  be — between  these  two  means 
of  communication  with  respect  to  the  contract  made  for  communicat- 
ing such  news:  The  postal  system  is  under  the  control  of  the  public 
service,  and  the  contract  made  with  it  for  delivering  a  letter  to  the 
addressee  is  not  similar  to  that  made  with  a  telegraph  company  to 
transmit  a  telegram.  In  one,  the  consideration — if  it  is  deemed  that 
any  at  all  has  been  given — is  made  indirectly,  as  by  means  of  public 
revenues ;  but,  in  the  other,  the  consideration  is  given  directly  by  the 
sender  in  the  way  of  charges  or  fees  for  the  transmission.  Therefore, 
if  it  should  be  held  that  the  postal  system  is  not  an  independent  con- 
tractor in  this  light,  it  is  for  the  above  reason. 

§  744.     Same  continued — may  be  sued. 

It  was  discussed  elsewhere  that  a  telegraph  company  could  be  sued 
by  the  sender  for  failing  to  correctly  transmit  a  telegram  entrusted  to 
its  care,  or,  in  other  words,  it  may  be  sued  for  a  breach  of  contract. 
Then,  how  can  it  be  sued  in  such  a  case  unless  there  has  been  a  con- 
tract made,  and  how  can  a  contract  be  made  unless  it  is  an  inde- 
pendent contractor  in  that  particular  instance  ?  Where  it  acts  as 
agent  for  the  sender,  it  only  acts  as  such  to  the  extent  of  delivering 
the  message  in  the  words  in  which  it  was  accepted  for  transmission ; 
however,  as  between  the  sender  and  an  innocent  addressee,  all  losses 
caused  by  errors  or  mistakes  in  the  transmission  must  be  borne  by 
the  sender,  yet  he  may  recover  his  loss  from  the  company. ^^  The  gen- 
eral rule  is,  that  the  principal  is  bound  by  the  acts  of  his  agent  while 
acting  within  the  ^apparent  scope  of  his  authority.  Then,  when  a 
person  appoints  a  telegraph  company  as  his  agent  to  transmit  and  de- 
liver a  message,  the  duty  of  such  agent  is  to  transmit  the  message  as 
received.  If  it  has  been  altered  in  its  transmission,  it  is  presimied 
that  this,  as  delivered  to  an  innocent  addressee,  is  the  correct  message 
or  the  one  which  it  was  employed  to  deliver.^^  It  has  been  held  that 
the  sender  is  bound  by  the  contents  of  the  telegram  as  received,  only 

"Ayer  v.  West.  U.  Tel.  Co.,  79  :Me.  5.57:    Pepper  v.   West.  U.  Tel.   Co.,  87 

493,  1  Am.  St.  Rep.  353.  Tenn.   554.    11    S.   W.   783.    10   Am.   St. 

"Pegram   v.   West.   U.  Tel.   Co..    100  Rep.  699,  4  L.  R.  A.  660. 
N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep. 


702  TELEGEAPII  AXD  TELEPIiOXE   COMPANIES.  [§    74-i 

SO  fav  as  it  is  a  faithful  reproduction  of  what  is  sent.^^  But  while 
the  sender  should  not  be  bound  to  the  company  in  such  manner  as  to 
preclude  him  from  maintaining  a  suit  against  it  for  a  breach  of  its 
contract,  jet  he  should  be  bound  to  an  innocent  addressee  who  has 
incurred  gTeat  expense  and  trouble  by  acting  on  the  erroneous  mes- 
sage. Because,  if  either  the  sender  or  addressee  must  suffer  for  the 
negligence  of  the  company,  it  should  fall  on  the  one  first  using  the 
company  to  effect  such  transaction.  We  think  the  rule,  however, 
would  be  otherwise  if  either  of  the  parties  to  the  telegram  were  acting 
in  the  capacity  of  agent  for  the  other.  This  fact  has  been  fully  dis- 
cussed elsewhere  and  Ave  therefore  deem  is  unnecessary  to  say  more 
about  the  subject. 

"Pepper  v.  West.  U.  Tel.  Co.,  87 
Tenn.  554,  10  Am.  St.  Rep.  699,  4  L. 
E.  A.  660. 


CHAPTER  XXXII. 

DISTRICT  TELEGRAPH  COMPANIES  AND   SUCH  AS  FURNISH 

"TICKERS." 

§  745.  Introduction. 

746.  Same  continued — duties  and  liabilities  of. 

747.  Company  furnishing  "tickers." 

748.  Same  continued — duties  and  liabilities. 

749.  Cannot  discriminate. 

750.  Unreasonable  stipulations — unenforcible. 

751.  Protection  against  unfair  competition. 

§  745.     Introduction. 

We  shall  very  briefly  discuss  in  this  chapter,  district  telegraph 
companies,  and  companies  furnishing  "tickers."  District  telegi-aph 
companies  exist  in  most — if  not  all — of  the  large  cities,  and  their 
business  is  principally,  if  not  exclusively,  to  furnish  messenger  boys 
for  the  purpose  of  carrying  parcels,  messages  and  doing  other  errands 
when  called  upon  at  district  stations  of  the  company  in  the  city 
There  is  a  distinction  between  the  business  purposes  of  these  and  or- 
dinary telegraph  companies.  One  is  organized  for  the  express  pur- 
pose of  transmitting  and  delivering  news  in  general  for  the  public, 
and  the  other  is  to  transmit  new^s  for  the  public,  but  the  news  is  gen- 
erally in  regard  to  employing  a  messenger  of  the  company  to  perform 
message  duties  and  such  as  is  given  above.  The  main  purpose  of 
these  companies  is  to  furnish  these  messenger  boys,  but  the  tele- 
graphic system  is  used  as  a  means  of  obtaining  these  messengers.  It 
is  not  necessary  to  enumerate  the  many  and  different  services  which 
may  be  rendered  by  these  messengers ;  but  suffice  it  to  say,  that  almost 
any  commission  or  service  may  be  performed  by  them. 

§  746.     Same  continued — duties  and  liabilities  of. 

The  duties  and  liabilities  of  district  telegraph  companies  are  the 
same  as  those  imposed  upon  ordinary  telegraph  companies,  except  in 
so  far  as  both  may  be  affected  by  the  difference  in  the  nature  of  their 
respective  businesses  as  in  particular  cases.  ^     Thus,  such  a  company 

^Ferber  v.  Manhattan  Dist.  Tel.  Co.,      Y.)    121    See,  also,   West.   U.   Tel.   Co. 
(C.  PI.  Gen.  T.)    22  Abb.  N.  Cas.    (N.       v.  Toledo.  103  Fed.  746.  121  Fed.  734. 

(703) 


TO-i  TELEGRAPH  A^^D  TELEPHONE   COMPANIES.  [§    Y46 

is  liable  for  the  loss  of  a  package  caused  by  one  of  its  messengers  de- 
livering it  contrarj^  to  the  instructions  of  the  sender.^  In  a  case 
against  one  of  these  companies  plaintiff  hired  a  buggy  and  horses  and 
on  returning  stopped  at  the  office  of  the  district  telegraph  company 
and  asked  for  a  boy  who  could  drive  the  horses  back  to  the  livery 
stable.  A  boy  was  sent  out  who  took  charge  of  the  horses,  but  owing 
to  his  negligence  and  incompetence,  the  horses  ran  away  and  injured 
themselves  and  the  vehicle.  It  was  shown  in  proof  that  the  company 
had  performed  similar  services  for  the  plaintiff.  It  was  held  that  the 
company  was  liable  for  the  damages  thus  occasioned,  also  that  though 
they  were  only  bailees  for  hire,  the  plaintiff  could  maintain  the  ac- 
tion to  recover  such  damages.^ 

§  747.     Company  furnishing  "tickers." 

We  have  had  an  occasion  to  speak  of  this  subject  elsewhere ;  there- 
fore, it  shall  only  be  lightly  considered  at  this  place.  As  seen,  the  or- 
dinary business  of  a  telegraph  company  is  to  transmit  and 
deliver  all  proper  news  tendered  it,  after  the  charges  have  been 
paid,  but  these  companies  may  assume  greater  duties,  and,  of  course, 
the  liabilities  imposed  for  assuming  this  extra  business  is  greater. 
Thus,  in  many  instances,  these  companies  are  expressly  organized 
for  the  purpose  of  collecting  and  distributing  news,  such  as  market 
reports  and  other  news.  When  these  extra  duties  are  assumed,  the 
company  is  not  only  under  obligations  to  transmit  correctly  and  de- 
liver promptly  all  news,  but  it  must  also  collect  and  distribute  ac- 
curately and  correctly  all  of  such  news.  For  instance,  in  collecting 
the  market  report,  the  same  must  be  distributed  exactly  as  it  is  re- 
ported on  the  market,  and  any  deviation  therefrom  whereby  a  sub- 
scriber suffers  loss,  will  be  a  loss  for  which  the  company  will  be  liable. 
The  business  of  these  companies  is  to  furnish  each  subscriber  with  an 
instrument,  commonly  called  a  "ticker."  by  means  of  which  the  re- 
port is  received. 
§  748.     Same  continued — duties  and  liabilities. 

These  companies  have  the  same  general  powers,  and  are  subject  to 
the  same  liabilities  as  ordinary  telegraph  companies,  the  difference 

*  American  Dist.  Tel.  Co.  v.  Walker,  ^  Id. 

72  Md.  454,  20  Atl.  1,  20  Am.  St.  Rep. 
479. 


<§,    749]  FURNISHING  TICKERS.  705 

betAveen  the  two  being  luerely  the  mcthuii  of  eloing  Ijiibiness.'  While 
the  measure  of  the  liability  of  these  companies  is  the  same  as  that  of 
the  ordinary  telegraph  companies,  so  far  as  the  nature  of  the  business 
of  the  two  is  the  same,  yet  when  the  additional  assumption  of  collect- 
ing and  distributing  is  undertaken,  the  liabilities  of  the  former  to 
this  extent  are  greater.  In  other  words,  as  stated,  these  companies 
must  exercise  the  same  care  and  diligence  in  transmitting  the  mes- 
sages as  is  imposed  upon  ordinary  telcgi-aph  companies,  and  in  addi- 
tion to  this  duty,  they  must  also  collect  the  news  accurately.  These 
coni]);iiiies  iiuiy  also  make  and  enforce  reasonable  regulations  with  re- 
S2)ect  to  the  use  of  their  ''tickers"  or  "stock  indicators"  by  their  sul> 
scribers.  One  of  their  requirements  is,  that  the  subscribers  shall  not 
furnish  the  market  reports  to  non-subscribers.  It  has  been  held  that 
this  requirement  was  reasonable  and  therefore  enforciblc.''  In  the 
case  cited  it  was  held  that  the  report  could  not  be  furnished  to  a  firm 
of  which  the  subscriber  was  a  member. 

§  749.     Cannot  discriminate. 

As  it  has  been  elsewhere  discussed,  an  ordinary  telegraph  company 
cannot  discriminate  among  those  who  engage  or  attempt  to  engage  its 
services,  but  it  must  show  the  same  favors  to  all  who  apply  to  it,  af- 
ter comi)lying  with  all  reasonable  regulations.  As  has  also  been  seen, 
telephone  companies  cannot  discriminate  among  their  subscribers, 
but  the  same  ])rivilegos  must  be  enjoyed  by  all  alike.  The  same  rule 
applies  to  these  companies.  They  are  engaged  in  a  public  employ- 
ment and  must,  therefore,  treat  all  their  subscribers  alike  and  not 
discriminate  among  them.''  They  may,  however,  refuse  to  furnish 
their  instruments  to  parties  who  are  carrying  on,  through  this  means, 
a  gambling  house.  The  law  will  not  force  these  companies  to  per- 
form an  act  which  is  for  an  illegal  i)urpose ;  and  should  they  have 
contracted  to  furnish  a  gambling  house  with  the  market  report,  they 
may  refuse  to  perform  their  part  of  the  contract."     When  the  plain- 

*See  chapter  18.  T.l.  Co.,  11  Biss.   (U.  S.)   531;  Bradley 

^Shepard  v.    Gold    Stock,    etc.,    Tel.  v.  Wost.  V.  Tel.  Co.,  27  Alb.  L.  J.  30.3. 

Co.,  38  Hun   (N.  Y.)    338.  •  Sinitli   v.  West.  U.  Tel.  Co.,  84  Ky. 

« Friedman  v.  Gold,  etc.,  Tel.  Co.,  32  6(14.   2    S.    W.   483.     Compare   Gray   v. 

Hun     (X.  Y.)    4;    Smith  v.   Gold,  etc..  West.  U.  Tel.  Co..  87  Ga.  350,  13  S.  K. 

Tel.  Co..  42  Hun     (X.  Y.)    454;  Metro-  562.  27  Am.  St.  Rep.  259,  14  L.  R.  A. 

politan  Grain,  etc.,  Exch.  v.  Mutual  U.  1)5. 

T.  &  T.— 45 


706  TELEGRAPH  AA^D  TELEPIIOKE   COMPA^IKS,  ["§    749 

tiffs  are  conducting  a  gambling  house,  equity  will  not  compel  these 
companies  to  furnish  them  with  a  "ticker,"  giving  the  quotations  of 
prices  ruling  on  the  Chicago  board  of  trade,  although  they  are  mem- 
bers of  that  board. ^  If,  however,  the  company  is  merely  the  agent  of 
an  exchange  to  communicate  the  market  quotations,  the  rule  would  be 
otherwise.  Under  these  circumstances,  the  exchange  would  only  be 
the  sender  of  the  reports,  with  the  right  to  name  the  addressee,  and 
under  no  duty  to  furnish  its  quotations  to  the  public.'' 

§  750.     Unreasonable  stipulations — unenforcible. 

These,  as  well  as  ordinary  telegraph  or  telephone  companies,  can- 
not enforce  an  unreasonable  stipulation.  Any  regulation  or  stipula- 
tion W'hich  would  be  against  public  policy,  or  in  conflict  with  the  law 
of  the  land,  or  which  would  give  the  company  an  advantage  over  its 
subscribers,  could  not  be  enforced.  If  there  is  a  stipulation  incor- 
porated in  the  contract  made  with  the  subscriber,  which  provides  that 
the  company  may  discontinue  its  services  or  the  furnishing  of  its  in- 
struments to  the  subscriber  without  notice,  whenever,  in  its  judgment, 
he  has  violated  the  contract,  it  cannot  be  enforced  on  account  of  its 
unreasonableness.  The  company,  under  such  a  stipulation,  would  be 
sole  judge  in  its  own  case,  and  this  could  never  be  the  case ;  since  the 
subscriber  would  be  deprived  of  his  rights  without  due  process  of 
law.i*^ 

§  751.     Protection  against  unfair  competition. 

The  market  quotations  and  other  similar  news,  collected  by  these 
companies  and  distributed  or  disseminated  among  their  subscribers, 
are  not  within  the  protection  of  the  copyright  laws,  yet  such  news 
constitute  property,  and  the  company  will  be  protected  in  a  court  of 
equity  against  rival  companies  which  seek  to  obtain  such  news  of  the 
company  without  proper  authority,  and  to  sell  to  their  customers  to 

*  Bryant  v.  West.  U.  Tel.  Co.,  77  Fed.  Co.  v.  Board  of  Trade,  125  Fed.     161, 

82.5.  reversing  121  Fed.  608. 

'Matter   of  Reuville,   46   N.   Y.  App.  ■»  Smith  v.  Gold  Stock,  etc.,  Tel.  Co., 

Div.  37.     See,  also,  Christie  Grain,  etc.,  42  Hun     (N.  Y.)    454. 


§    V51]  FURNISHING  TICKERS.  TO? 

the  injury  or  detriment  of  the  former  company's  services. ^^  While 
the  news,  before  it  has  been  collected  by  the  company,  may  be  free  to 
all  who  may  desire  to  obtain  it,  yet,  as  the  company  has  worked  to 
gather  compiled  or  collect  the  same,  it  has  a  right  to  the  exclr.  l.e 
use  of  it  while  in  the  company's  possession. 

» National  Tel.  News  Co.  V.  West.  U.      v.    Cleveland    Tel.    Co.,      (50    C.    C    A. 
Tel.  Co..    (50  C.  C.  A.   198)    119  Fed.      205)    119  Fed.  301. 
294,  00  L.  R.  A.  805;  Illinois  Com.  Co. 


TABLE   OF   CASES   CITED 

[Kt'fercnces  are  to  poKc  uuiubtTs. ) 

A. 

Abbott  V.  Duluth    73,  84,  87,  169 

V.  Johnston,  etc.,  R.   Co 50,    51 

V.  New  York,  etc.,  R.  Co 148,  149 

V.  Omaha   Smithing   etc.,  Co 47 

V.  West  U.  Tel.  Co 281 

Abendroth  v.   Manhattan  R.  Co 57,  117 

Abies  V.  West  U.  Tel.  Co 506 

Abraham  v.  West.  U.  Tel.  Co 30,  453 

Achenson  v.  West.  U.  Tel.  Co 473 

Adams  v.  Gray  421 

V.  Hayles    393 

V.  Lawson    417 

V.  Lendsell 690 

. V.  Louisville,  etc.,  R.  Co 137,  139 

Adams  Ex.  Co.  v.  Harris   441 

Agrew  V.  Steamer  Costa  Rica  343 

Ahern  v.  Oregon  Tel.,  etc.,  Co 179 

Aigen  v.  Boston,  etc.,  R.  Co 436 

Aiken  v.  West.  U.  Tel.  Co.  .30,  315,  358,  370,  372,  383,  398,  453,  480,  482 

Akard  v.  West.  U.  Tel.  Co 556 

Alabama,  etc.,  R.  Co.  v.  Brooks  417 

Albers  v.  West.  XT.  Tel  Co 615 

Alden  v.  Murdock   116 

Aldrich  v.  Cheshire  R.  Co 158,  159 

V.  Inhabitants  of  Pelham   189 

Alexander  v.  West.  U.  Tel.  Co. 

209,  259.  271,  419,  446,  457,  473,  600,  693 

Alexandria,  etc.,  F.  R.  Co.  v.  Alexandria,  etc.,  U.  R.  Co 125 

Alford   V.    Wilson    687, 690 

Allen  V.  Atlantic,  etc.,  Tel.  Co 181,  182,  185 

V.  Jaquish   670 

V.  West.  U.  Tel.  Co 577 

V.  Willard    186 

(709) 


710  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

AUentown  v.  West.  U.  Tel.  Co .' 207,  220,  222 

Almutt   V.   Ingles    22,  214 

Almy  V.  Church   75 

American  Dist.  Tel.  Co.  v.  Walker  704 

American,  etc.,  Tel.  Co.  v.  Connecticut  Tel.  Co 243 

■ V.Dougherty    354,  362,  369,  385,  456,  506,  656 

V.  Harrison    169,   l94,  220 

V.  Hess 19,  63,  76,  77,  88,  119,  205,  206,  220 

V.  Jones   102 

V.  Kersch   180 

V.  Millereck  Tp 171 

V.  Pearce 17,  68,  136,  137,  138,  140 

V.  Smith 66 

V.  West.  U.  Tel.  Co.   206,  207,  212 

Ames  V.  Kyle   421 

V.  McKamber  465 

V.  Union  County .-   128 

Ammant  v.  New  Alexandria  &  Pitt.  Turnpike  Road 49,  50,    53 

Anchor  Line  v.  Dater  436 

Anderson  v.  Cincinnati  Sou.  R.  Co 51 

V.  Delphi,  etc.,  Tel.  Co 94 

V.  Harold 673 

V.  State   624 

V.  West.  U.  Tel.  Co. 285,  395,  408 

Andrews  v.  Delphi,  etc.,  Tel.  Co 102,  124 

V.  Schrieber   687 

Anglo-American  Packing,  etc.,  Co.  v.  Com.  658 

Anheuser-Busch  Brewing  Assn.  v.  Heitmacher   653,  697 

Annas  v.  Milwaukee,  etc.,  R.  Co 357 

Applegate  v.  Ernst  621 

Appleman  v.  Fisher   414 

Archambault  v.  Great  Northwestern  Tel.  Co 325 

Arkridge   v.  Glover    695 

Arther  v.  Commercial  Bank 50,  52,    53 

Ash  v.  Cummings   3  25 

Ashby  V.  White 114,  115.  593 

Asheford  v.  Schoop 697 

Ashley  V.  Port  Huron  92 


TABLE    OF    CASES   CITED.  711 

[Referc-nff^s  iire   to  page  numbers.] 

V.  Ryan   ^^^ 

Atchison,  etc.,  R.  Co.  v.  Boerner  158 

V.  Bryan  ^^^ 

V.  Fletcher  148 

V.  Forney    158 

V.  Roach 422 

V.  Temple 291 

Atkinson  v.  Cheatham 180 

Atlantic,  etc.,  R.  Co.  v.  Dunn    578,  579 

V.  Laird   475 

Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  R.  Co 68,  140 

V.  Union  Pac.  R.  Co  52 

V.  West.  U.  Tel.  Co 325 

Attorney  General  v.  Edison  T.  Co 2,  7,  10,     11 

V.  U.   K.   Elect.    T.    Co 87 

Atwood  V.  Fricat 115 

Aucrbach  v.  Cuyahoga  Tel.  Co 220 

Augusta  Bank  v.  Earle   47 

Austin  V.  Manchester  R.  Co 358 

Austrian  v.   Springer   671 

Averill  v.  Hedge   690,  694 

Avinger  v.  South  Carolina  R.  Co 48G 

Aver  V.  West.  U.  Tel.   Co. 

263,  299,  354',  362,  363,  365,  369,  464,  479,  480,  638,  697,  701 

Ayers  v.  Russell   460 

B. 

Baglow  V.  McMickle   650 

Bailey  v.  Atlantic,  etc.,  Co 623 

V.  Feequa   624 

Baird  v.  Dailey 188 

Baker  v.  Gows  Normal 122 

V.  Haines   ^47 

V.  Holt  692 

V.  Selma  Street,  etc.,  R.  Co   103 

Baldwin  v.  Barney 424 

V.  U.  S.  Tel.  Co..  .297,  431,  433,  437,  439,  440,  441.  490.  498,  509 

Ballard  v.  Mississippi  Cotton  Oil  Co 191 

Ballentine  v.  North  Missouri,  etc.,  R.  Co 341 


712  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Baltimore  v.  Chesapeake,  etc.,  Tel.  Co 220 

Baltimore,  etc.,  R.  Co.  v.  Board  of  Commerce   143 

V.  Boyd   114,  115 

V.  Glenn    148 

V.  P.  W.  &  Ky.  R.  Co 148 

Baltimore,  etc.,  Tel.  Co.  v.  Lovejoy   597 

V.  Morgan's  Louisiana,  etc.,  R.  Co 69 

V.  State    607 

Bancroft  v.  Merchant's,  etc.,  Co 442 

Bank  v.  Richardson  653 

V.  State  618 

Bank  of  Augusta  v.  Earle  148 

Bank  of  California  v.  West.  U.  Tel.  Co 44 

Bank  of  New  Orleans  v.  West.  U.  Tel.  Co 411 

Bank  of  Middlesbury  v.  Edgerton 50 

Banning  v.  Banning   664,  668 

Bannon  v.  Baltimore,  etc.,  R.  Co 587 

Barber  v.  Rapbury 89 

Barhite  v.  Home  Tel.  Co 87 

Barnes  v.  West.  U.  Tel.  Co 40,  311,  551 

Barnesville  First  Nat.  Bank  v.  West.  U.  Tel.  Co 490 

Barnett  v.  Independent  Tel.  Co 181 

V.  West.  U.  Tel.  Co 210 

Barnsley  v.  St.  Louis,  etc.,  R.  Co 623 

Barons  v.  Brown .    653,  656,  658 

Barrett  v.  West.  U.  Tel.  Co 210,  374,  615 

Barthelmy  v.  People    561 

Bartlett  v.  Collins  361 

Bartlett  v.  West.  U.  Tel.  Co. 

30,  40,  265,  269,  299,  320,  354,  368,  369,  479,  490 

Bartwell  v.  West.  U.  Tel.  Co 32 

Bashfield  v.  Empire  St.  Tel.  Co 57 

Batton  V.  Watson  561 

Baxendale  v.  Eastern  Counties  R.  Co.    232,  233 

Baxter  v.  Brown    670 

V.  Dominion   Tel.   Co 30 

Bay  City,  etc.,  R.  Co.  v.  Austin  618 

Bayonne  v.  Lord   169 


TABLE    OF   CASES    CITED.  713 

[References  are   to  page  nunibers.] 

Beach  v.  Baritan,  etc.,  R.  Co 675,  687 

Beal  V.  South  Devon  R    Co 358 

Beard  &  Sons  v.  111.  Cen.  R.  Co 440 

Beasley  v.  West.  U.  Tel.  Co 265,  339,  371,  372,  393,  406,  407,  556 

Beatty  v.   Mutual,  etc.,  Assn 486 

Beauchamp  v.  Comfort  421 

Beaupre  v.  Pacific,  etc.,  Tel.  Co 506,  511,  524 

Beckeuridge  v.  Crockett 674 

Becker  v.  West.  U.  Tel.  Co 36,  320,  356,  359,  3S3 

Beesenbury  v.  Mut.  U.  Tel.  Co 109 

Behm  v.  West.  U.  Tel.  Co 265,  272,  506 

Bergin  v.  Southern  New  Eng.  Tel.  Co 190 

Berkett  v.  West.  U.  Tel.  Co 398 

Bernett  v.  West  U.  Tel.  Co 383 

Berney  v.  New  York,  etc.,  Tel.  Co 32 

Belger  v.  Densmore   394 

Bell  V.  Packard 466 

V.  Dominion  Tel.  Co 26,  453 

Bell  Tel.  Co.  v.  Commissioners,  etc 7,  12,  218,  246 

Belo  V.  Fuller   583 

Bellsdyke  Coal  Co.  v.  North  British  R.  Co 232 

Beman  v.   Rufford    50 

Bemberry  v.  Bemberry   681 

Benedict  v.  West.  U.  Tel.  Co 50,     52 

Bennett  v.  Northern  Pac.  Ex.  Co 391,  482 

V.  West.  U.  Tel.  Co 381,  516 

Bergin  v.  S.  N.  E.  Tel.  Co 190 

Berney  v.  New  York,  etc.,  Tel.  Co 331 

Beveridge  v.  Lewis  150 

Beynur  v.  McBride 307 

Bierhaus  v.  West.  U.  Tel.  Co 267.  513,  544 

Billinger  v.  New  York,  etc.,  R.  Co 178 

Biloxi  City  R.  Co.  v.  Maloney  5"7 

Bird  V.  Monroe '"  ^ 

Birkett  v.  West.  U.  Tel.  Co ^'S,  356 

Birmingham,  etc.,  R.  Co.  v.  Baird 589 

Birney  v.  New  York,  etc.,  Printing  Co 252,  393.  403 

V.  New  York,  etc.,  Tel.  Co 30.  297,  319,  369 


714  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Bissell  V.  N.  Y.  C.  R.  Co 116 

Bixby  V.  Dunlap 576 

Black  V.  Delaware,  etc.,  Canal  Co 49,    51 

Blair  v.  Perpetual  Ins.  Co 148 

Blake  V.  Ins.  Co 692 

Bland  v.  Adams  Express  Co 345 

Bliss  V.  Baltimore,  etc.,  Tel.  Co 282,  289 

Block  V.  Fitchburg  R.  Co.    441 

Blockow  V.  Seymour    690 

Bloodgood  V.  Mohawk,  etc.,  R.  Co 125 

Bloom  V.  Richards   421 

Bloomfield  G.  L.  Co.  v.  Calkins   93 

Bloomington  v.  Bourland  208 

Blount  V.  West.  U.  Tel.  Co 553 

Blythe  v.  Denver,  etc.,  R.  Co. 342 

Board  of  Corns,  of  Tippecanoe  County  v.  Lafayette,  etc.,  R.  Co . .     51 

Board  of  Trade  Tel.  Co.  v.  Barnett 74,  109,  115,  119,  120,  123 

Bodkin  v.  West.  U.  Tel.  Co 542,  498 

Bogg  V.  Wilmington,  etc.,  R.  Co 436 

Bolt  V.  Stennett   22 

Bonn  V.  Bell  Tel.  Co 180 

Borland  v.  Barnett   577 

Bordstown,  etc.,  R.  Co.  v.  Metcalf  50 

Boston  V.  Richardson  98 

V.  Schaeffer  632 

Boston,  etc.,  Co.  v.  Salem,  etc.,  R.  Co.   144,  145 

Boston  and  R.  M.  Corporation  v.  Newman  92 

Boston  Safe  Deposit,  etc.,  Co.  v.  Bankers,  etc.,  Tel.  Co 23 

Boteman  v.  West.  U.  Tel.  Co 331 

Bowen  v.  Lake  Brie  Tel.  Co 26,  528 

Bowman  v.  Teall   342 

Boyston  v.  Rees   655 

Bradley  v.  Rea  •. 421 

V.  West.  U.   Tel.   Co 412,  705 

Brady  v.  Northwestern  Ins.  Co 597 

Bragg  V.  People  48 

Branch  v.  Libbey • 188 

Braner  v.  Show   696 


TABLE   OF   CASES   CITED.  715 

[References  are  to  page  numberK. J 

Branish  v.  State   48 

Brawser  v.  Show  687 

Breckenridge   v.   Croker    693 

Breese  v.  United  States  Tel.  Co 393,  394 

Brette,  etc.,  R.  Co.  v.  Montana,  etc.,  R.  Co 145 

Brewer  v.  Harst,  etc.,  Co 690 

Brewster  v.  West.  U.  Tel.  Co 531 

Brickett  v.  West.  U.  Tel.  Co 36 

Briggs  V.  Lewiston 92 

V.  Phillips    75 

Bright  V.  West.  U.  Tel.  Co 288 

Brimhall  v.  Van  Campers   421 

Bristol  V.  Rensselaer,  etc.,  R.  Co 475 

Bristow   V.  Lane    453 

Brooks  V.  West.  U.  Tel.  Co 210,  441,  522,  607 

Broom   v.   New   Jersey   Tel.   Co 77,   87,109 

Brooms  v.  N.  Y.,  etc.,  Tel.  Co 80,  108,  109,  118,  126 

Broshers  v.  West.  U.  Tel.  Co 280 

Brown  v.  Chicago,  etc.,  R.  Co 458 

V.  Duplesis    92 

V.  Hannibal,   etc.,   R.   Co 312 

V.  Markland    452 

V.  Maryland   636 

V.  Postal  Tel.  Co. 

26,  40,  333,  343,  354,  363,  369,  385,  395,  420,  423,  448,  543 

Brownfield   v.   Phoenix   Ins.   Co 649 

Bronson  v.  Albion  Tel.  Co 57,  102,  117 

Bryan  v.  West.  U.  Tel.  Co 288,  383,  551,  574 

Bryant  v.  American  Tel.  Co 26,  544 

Bryant  v.  West.  U.  Tel.  Co 240,  414,  706 

Brush  Electric  Lighting  Co.  v.  Kelley 174,  189 

Buck  V.  Pennsylvania  R.  Co 392 

Budd  V.  New  York  238 

Buffett  V.  Great  W.  R.  R.  Co 50 

Buford  V.  Samuel 648 

Burgess  v.  West.  U.  Tel.  Co 204,  626 

Burnett  v.  Pennsylvania  R.  Co 361 

V.  West.  U.  Tel.  Co 209,  423,  515,  568,  596,  606 


716  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Burns  v.  Campbell  . 577 

Burt  V.  Winona,  etc.,  R.  Co.  646 

Burton  v.  Frink 187 

V.  Larkin    452,   453,  455 

Butler  V.  Greene   32 

V.  Rahm 51 

V.  West.  U.  Tel.  Co 551,  587,  588 

Butner  v.  West.  U.  Tel.  Co 455,  568,  601 

Butte,  etc.,  R.  Co.  v.  Montana,  etc.,  R.  Co 142,  145 

Butterfield   v.   Spencer    692 

Buzzell  V.  Laconia  Mfg.  Co 193 

C. 

Cahn  V.  West.  U.  Tel.  Co 524 

Calhoun  v.  Atchison   687,  690,  696 

California,  etc.,  Tel.  Co.  v.  Alta  Tel.  Co 168 

Callum  V.  Columbus  E.  E.  Co 102 

V.  District  of  Columbia 202 

Camerlin  v.  Palmer  Co.   667 

Camp  V.  West.  U.  Tel.  Co 354,  393 

Campbell  v.  Chicago,  etc.,  R.  Co 188,  420 

Camp  Point  Mfg.  Co.  v.  Ballow 193 

Canadian  Pac.  R.  Co.  v.  West.  U.  Tel.  Co 69,  148,  167 

Canal,  etc.,  R.  Co.  v.  St.  Charles  St.  R.  Co 53 

Candee  v.  West.  U.  Tel.  Co 355,  369,  506,  507  513 

Canfield  v  Baltimore,  etc.,  R.  Co 392 

Cannon  v.  West.  U.  Tel.  Co 282,  283,  284,  389,  513,  524 

Cannon  River  Mfg.  Assoc,  v.  Rogers    694 

Cape  May,  etc.,  R.  Co.  v.  Johnson   663 

Garden  v.  New  York,  etc.,  R.  Go 486 

Garland  v.  West  U.  Tel.  Co 304,  403,  406 

Garli  v.  Stillwater  St.  R.,  etc.,  Tel.  Go. 92 

Garnahan  v.  West.  U.  Tel.  Co 420,  600,  609 

Carpenter  v.  Oswego,  etc.,  R.  Co 116 

Carroll  v.  Interstate,  etc..  Go.  486 

V.  Staten   Island   R.   Go 424 

Carson  v.  Central  R.  Co 92 

Carver  v.  West.  U.  Tel.  Co.   526 


TABLE   OF   CASES   CITED.  717 

( Kcferenrcs  are  to  page  iiuinbers.] 

Cashion  v.  West.  U.  Tel.  Co 515,  551,  55G 

Castigan  v.  Mohawk  &  Hudson  R.  Co 307 

Cates  V.  Northwestern,  etc.,  Tel.  Co  94,  9G,  100,  101 

Cayley  v.  Walpole    69" 

Cayzer   v.   Taylor    193 

Central  Branch  Union  Pac.  R.  Co.  v.  West.  U.  Tel.  Co 52 

Central  Bridge  Corp.  v.  City  of  Lowell   142 

Central  Dist.,  etc.,  Co.  v.  Commissioners 247 

Central  Pennsylvania,  etc.,  Co.  v.  Wilkerson,  etc.,  R.  Co 175 

Central  R.,  etc.,  Co.  v.  Bridger   442 

V.  Frankenburg  395 

Central  Trans.  Co.  v.  Pullman  Palace  Car  Co 51,  52,    57 

Central  Trust  Co.  v.  Wabash,  etc.,  R.  Co 687,  690 

Central  U.  Tel.  Co.  v.  Bradbury 30,  213,  218,  238 

V.  Falley. 

2,  23,  41,  202,  203,  225,  227,  232,  236,  237,  238,  469,  625 

V.  Fehring 236 

V.  State    213,216.238 

V.  Swoveland    255,  354 

Cincinnati  v.  White    112 

Cincinnati,  etc.,  R.  Co.  v.  Bank 452 

V.  Butler    187 

V.  City,  etc.,  Tel.  Assn 196 

Cincinnati  Incline  Plane,  R.  Co.  v.  City,  etc.,  Tel.  Assn. .10, 18, 19,     74 

City  V.  Parker  ^ ' 

City  of  Bloomington  v.   Bourland    208 

City  of  New  Orleans  v.  Kaufman   621 

City  of  St.  Louis  v.  Bell  Tel.  Co 22 

Clairain  v.  West.  U.  Tel.  Co 188,  190,  192,  193 

Clark   V.   Dales    465 

V.  Omaha,  etc.,  R.  Co 49 


V.  Wyatt 


647 


Clay  V.  Allen  414 

V.  Postal  Tel.  Co 121 

V.  West.  U.   Tel.   Co 502,  540 

Chaffee  v.  Tel.,  etc.,  Consir.   Co 174,  186 

Chalker  v.  Chalker   •  •  •  597 

Chalmers  v.  Patterson,  etc.,  Tel.  Co 174.  190 


718  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.]    ■ 

Chamberland  v.  Iowa  Tel.  Co 73 

Chameon  v.  Sanford  Co 192 

Champion  Electric  Light   Co.    201 

Chance  v.  Indianapolis,  etc.,  R.  Co 647 

Chaperon  v.  Portland  Gm.  Electric  Co 175 

Chapman  v.  New  Orleans,  etc.,  R.  Co 392 

V.  West.  U.  Tel.  Co 490,  499,  551,  553,  567,  569,  571 

Charleston  v.  Postal  Tei.  Cable  Co 636 

Charleston,  etc.,  R.  Co.  v.  Hughes 158 

Charlotte  v.  Omaha,  etc.,  R.  Co 51 

Chase  v.  West.  U.  Tel.  Co 552,  567 

Chauper  v.  Greencastle   87 

Chespeake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co. 

2,   7,   15,   235,  240 

V.  Mackenzie 20,  77,  78,  89,  90,  94,  108,  111,  112,  115 

V.  Manning    213,    216,  217 

Chester  v.   State    646 

V.  West.  U.  Tel.  Co 222,  223 

Chicago  V.  Martin    580 

Chicago,  etc..  Bridge  Co.  v.  Pac.  Mut.  Tel.  Co 17 

Chicago  Gas  Light  Co.  v.  People's  Gas  Light  Co 22,     51 

Chicago  Packing  &  Provision  Co.  v.  Chicago  632 

Chicago,  etc.,  R.  Co.  v.  Ashley  22 

V.  Board    623 

V.  Chicago    81,  131,  133,  161,  162,  163  164 

V.  Hooffner 481 

V.  Iowa  22 

V.  Jackson   577 

V.  Katzenbach   391 

V.  Maroney    192 

V.  McLenden    587 

V.  Milwaukee,  etc.,  R.  Co 103 

V.  Morehouse    151 

V.  Northern,  etc.,  Co 442,  444 

V.  Pacific  Mut.  Tel.  Co 141 

V.  Parks  229 

V.  People   230 

V.  Quincy   76 


TABLE. OF   CASES    CITED.  719 

[References  are  to  page  numbers.] 

V.  Russel   653 

V.   Scurr    577 

V.  Snyder   137 

V.  Stockweather  142 

V.  Sweet   193 

V.  Van  Vleck 487 

V.  Whiting,   etc.,   R.    Co 99 

Chicago  Tel.  Co.  v.  Northwestern  Tel.  Co 119,  168 

Childers  v.  San  Jose,  etc.,  Pub.  Co 584 

Childs  V.  Nelson   75 

Chiles  V.  Drake 576 

Choate  v.  Crawenshield   351 

Christian  Union  v.  Yount   148 

Chung  Kee  v.  Davidson 452,  453 

Church   V.   Hubbard    650 

Clairain  v.  W.  U.  Tel.  Co 193 

Clement  v.  West.  U.  Tel.  Co 36,  383,  404,  407 

Cleveland  Burial  Case  Co.  v.  Erie  R.  Co 110 

Cleveland,  etc.,  R.  Co.  v.  Backus  633 

v.  Speer    144 

Cobb  v.  Force    692,  696 

Coburn  v.  New  Tel.  Co HI 

Cock  V.  West.  il.  Tel.  Co 316 

Coe  v.  Columbus,  etc.,  R.  Co 49,     52 

Cohen  v.  West.  U.  Tel.  Co.,  414,  524,  531 

Coit  V.  West.  U.  Tel.  Co 297,  401,  407,  483 

Cole  V.  Drew 106 

V.  Tucker   577 

V.  West.  U.  Tel.  Co 371,  372,  393 

Coleman  v.  Applegrath   695 

V.  Hiler    452 

Coles  V.  Midland  Tel.,  etc.,  Co 126 

College  Mill  Co.  v.  Fidler    686,  687 

Collins  V.  Bristol,  etc.,  R.  Co 436 


v.  Dorchester 


189 


Colorado  Electric  Co.  v.  Lubbers  193 

Colton   V.   Cleveland,   etc.,   R.   Co 343 

Columbus,  etc.,  R.  Co.  v.  Wright 628 


720  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Colwell   V.   Colorado   Springs   Co 148 

Commercial  U.  Tel.  Co.  v.  New  England   Tel.,  etc.,  Co.    ..237,  246 
Commonwealth  v.  Alger 22,  215 

V.   Boley    59 

V.    Boston    169 

V.  Burton   644 

V.  Duane   22 

V.  Jeffries    647,  658,  660,  681 

V.  Moorehead   "^5 

V.  Power 324 

V.  Smith   49,  50,  52,  208,  626 

V.  Standard   Oil   Co 618 

V.  Vasburg    649 

V.  Warwick 77,  169 

V.  Welsh   618 

V.  West.  U.  Tel.  Co 15,  30,  416,  506 

Condon    v.    Marquette,    etc.,    R.    Co 439 

Conneil  v.  West.  U.  Tel.  Co..  .206,  245,  419,  478,  568,  572,  597,  600,  607 

Conner  v.  Robinson    414 

Consolidation  Coal  Co 50 

Converse  v.  Norwick,  etc.,  Tel.  Co 441 

Conyers  v.  Postal  Tel.  Cable  Co 474,  611,  653,  654 

Cook   V.  West  U.   Tel.   Co 294 

Cooley  V.  Board  of  Port  Wardens  207 

Cooper  V.  Lansing  Wheel  Co 695 

V.    Smith    116,  673 

V.    Sun    Print.,   etc.,  Assn 584 

Cooper  Mfg.  Co.  v.  Ferguson   212 

Corporation  v.  Eaton    61 L 

Costigan  v.  Mohawk  &  H.  R.  R.  Co 538 

Cothran  v.  West.  U.  Tel.  Co 414 

Couch    V.    Watson    Coal    Co 188 

County  of  Mobile  v.  Kimball 602 

Coupland   v.   Arrowsmith 644 

Cowan  V.  West.  U.  Tel.  Co 456,  476,  479,  549,  551 

Coxan  V.  Great  Western  R.  Co 436 

Craig  V.  Childress 343 


TABLE   OF   CASES   CITED.  721 

[References  are  to  page  numbers.] 

Grain  v.  Petrie   *99 

Crandall  v.  Nevada    ^36 

Crasby  v.  Fitch   344 

Crasson  v.  West.  U.  Tel.  Co 567 

Crawson  v.  West.  U.  Tel.  Co 552 

Croake  v.  Flatbush,  etc 93 

Crocker  v.  Collins 75 

Crogin  v.  New  York,  etc.,  R.  Co 357 

Cronur  v.  Burlington   188 

Crosby   v.   Hawthorn    598 

Croudall  v.  Goodrich  Transpt.  Co 186 

Culver  V.  Warren   699 

Cumberland  Marine,  etc.,  R.  Co.  v.  Portland  624 

Cumberland  Tel.  Co.  v.  Avritt  93 

V.  Baker * 337 

V.  Brown    254,   559,  560 

V.  Cassedy '^^ 

V.  Coats   17-1.  181 

V.  Cook 175 

V.  Hendon    247,470 

V.Hunt    175,178 

V.  Louisville  Home  Tel.  Co 168 

■  V.  Poston   581 

V.  Sanders    324,  598,  599 

V.  United  Electric  Co 7,  14,  197,  201 

Curtin  v.  West.  U.  Tel.  Co 398,  490,  568 

Curtis  V.  Gibney  • ^87 

Cutts  v.  West.  U.  Tel.  Co 22.  543 

D. 

Daflinger  v.  Pittsburg,  etc.,  Tel.  Co 58,  117 

Dailet  v.  State   121 

Dailey  V.  State  102,118.121,  123.  202 

Dake  v.  Campbell  ^70 

Dale  V.  Delaware,  etc.,  Co 188 

Dambmann  v.  Lonitz   695 

Damenville   v.   Leonard    ^63 

Dana  v.  Short   ^86 

T.  &  T.— 46. 


722  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Dane  v.  Derby ^32 

Daniel  v.  West.  U.  Tel.  Co 506 

Dard  v.  Bounaffee    466 

Darlington  v.  W,est.  U.  Tel.  Co 515,  551 

Dartmouth  College  v.  Woodworth  212 

Davis  V.  Dudley   182,  185 

V.  Eastern  steam  boat  Co 295 

V.   Meyer    144 

V.  Pacific  Tel.,  etc.,  Co 7,  194 

V.  West.  U.  Tel.  Co.   . .   42,  283,  309,  331,  333,  515,  552,  568 

577,  586. 

Dawson  v.  Postal  Telegraph  Co 78 

Day  V.  McAllister   421 

■ V.  Postal  Tel.  Co 149 

Deere  v.  Bagley 648 

De  La  Grange  v.  Southwestern  Tel.  Co 370,  453,  479 

Delaney  v.  Hillton   188 

Delaware  v.  Delaware,  etc.,  T.  Co 238 

Delaware,  etc.,  Tel.  Co.  v.  State  240 

Denning  v.  Chicago,  etc.,  R.  Co 568 

V.  Roberts    697 

Denver  v.  Chicago,  etc.,  R.  Co ., 343 

V.  U.  S.  Tel.  Co 102,  116 

Denver,  etc.,  R.  Co.  v.  Denver  City  R.  Co 47 

DeRutte  v.  New  York,  etc.,  Tel.  Co 30,  309,  393,  453,  455 

Deslottes  v.  Baltimore,  etc.,  Tel.  Co 291,  292,  462,  303 

Desert  Irr.  Co.  v.  Mclntyre  154,  155 

Detr(3it  City  R.  Co.  v.  Mills   100 

De  Voegler  v.  West.  U.  Tel.  Co 561 

Dickey  v.  Maine  Tel.  Co 174 

Dickson  v.  Renter's  Tel.  Co 689 

Dimmitt  v.  Kansas  City,  etc.,  R.  Co 436 

District  of  Columbia  v.  Dempsey 174 

Dixon  V.  Clow 114.  US 

V.  Renter's  Tel.  Co 451 

Doan  V.  Lake  St.,  etc.,  R.  Co 103 

Dock  V.  Elizabethtown  Steam  Mfg.  Co 578 

Dodd  Grocery  Co.  v.  Tel.  Cable  Co 526 

Dodge  V.  Council  Bluffs 148 


TABLE    OF   CASES    CITED.  723 

[References  are  to  page  numbers.] 

Doggett   V.    State    598 

Domestic  Tel.  etc.,  Co.  v.  Newark    87 

Donio  V.  West  U.  Tel.  Co 376 

Donnell  v.  Jones 186 

Donovan  v.  Allert   102,  104,  106,  116  119 

Dorgan  v.  West.  U.  Tel.  Co -f"'!* 

Dougan  v.  Champlain  Transp.  Co 188 

Dougherty  v.  West.  U.  Tel.  Co.. 305,  306,  388,  418.  448,  456,  506,  530 

Dovaston  v.  Payne 104 

Dow  V.  Humbert   593 

Dowdy  V.  West.  U.  Tel.  Co 334,  551 

Driden  v.  West.  U.  Tel.  Co 518 

Drue,  etc.,  Tel.  Co.  v.  State  241 

Duble  V.  Botts   687 

Dubley  V.  West.  U.  Tel.  Co 607 

Dubuque  v.  Chicago,  etc.,  Co 622 

V.  Illinois  C.  R.  Co 627 

DufEee  v.  Portland,  etc.,  R.  Co 229 

Duke  V.  New  Jersey  Tel.  Co 7,  15,  126,  128,  129,  131 

Duluth   V.  Duluth   Tel.   Co 73 

Dumme  v.  People "^8 

Dunbar   v.   United   States    . ". 646 

Duncan  v.   Beard    59 

Dunning  v.  Learvitt   ^53 

Durkee  v.  Vermont  Cent.  R.  Co 653,  654,  658,  687,  697,  699 

Dutton  V.  Poole 450 

Dyke  v.  Erie,  etc.,  R.  Co 361 

E. 

East  Boston  Freight  Co.  v.  Hubbard   50 

East  Tenn.  Tel.  Co.  v.  Anderson  Tel.  Co 79 

V.  Bayless    38.1 

V.  Russelville  '^^' 

Eastern  R.  Co.  v.  Benedict ^^^ 

Echols  V.  Evansville  St.  R.  Co 99 

Eckert  v.  Schoch  -687 

Edgerton  v.  New  York,  etc.,  R.  Co 186 

Edgerton  v.  State   ^-~ 

Edwards  v.  Ricks '^"~ 


724  TABLE    OF    CASES    CITED. 

[References  are  to  i^age  numbers.] 

Eels  V.  American  Tel.,  etc.,  Co 104,113 

Eels  V.  St.  Louis,  etc.,  R.  Co 354 

Efird  V.  West.  U.  Tel.  Co 308 

Eldridge  v.  Hargraves   649 

Elizabeth,  etc.,  R.  Co.  v.  Combs   112,  113 

V.   Cowles    .• 93 

Ell  V.  Northern  Pac.  R.  Co 192 

Elliott  V.  Fair  Haven,  etc.,  R.  Co 92 

V.  Van  Buren 650 

V.   West.  U.   Tel.   Co 449,  462 

Ellis  V.  Am.  Tel.  Co 30,  258,  321,  397,  398,  493 

V.   Hammond    421 

V.  Harrison 459 

Elsey  V.  Postal  Tel.  Cable  Co 528 

Elwood  V.  West.  U.  Tel.  Co 425  454,  646 

Ely  V.  St.  Louis,  etc.,  R.   Co 188 

Embler  v.  Hartford  Steam,  etc.,  Ins.   Co 452 

Empire  Mills  v.  Alston  Grocery  Co -. <  . . . .  148 

Enfield  Toll  Bridge  Co.  v.  Hartford,  etc.,  R.  Co^ 142,  145 

Englewood   Connecting  R.   Co.  v.   Chicago,  etc.,  R.   Co 151 

Eppinger  v.  Scott   644 

Erie,  etc.,  R.  Co.  v.  Dater 366 

Erie   Tel.,   etc.,   Co.   v.   Grims    515 

V.Kennedy 102,115 

Evans  v.  Atlanta,  etc.,  R.  Co 440 

V.  Pacific,  etc.,  Tel.   Co 511 

•  V.  West.  U.  Tel.  Co 288,  315,  503,  522 

Evening  Journal   Assn.   v.    McDermott    417,  583 

Ewing  V.  Pittsburg,  etc.,  R.  Co 573 

F. 

Fagundes  v.  Cent.  Pac.  R.   Co 486 

Fairbanks  v.  Kerr   186 

Fairley  v.  West.  U.  Tel.  Co 539 

Fall  River  Iron  Works  Co.  v.  Oil  Colony,  etc.,  R.  Co 151 

Falvey  v.  Georgia  R.  Co 269 

Fargy  v.  First  National  Bank   647 

Faris  v.  Hoberg 182 


TABLE    OF   CASES    CITED.  t2o 

[References  are   to  page  numbers.] 

Farnswoith   v.   West.   U.  Tel.    Co 194 

Fay  V.  Parker 578 

Ferber  v.  Manhattan   Dist.  Tel.  Co 703 

Ferguson  v.  Anglo-American  Tel.  Co .506 

Fererro  v.  West.  U.  Tel.  Co 499,   506.  512 

Ferrier  v.  Sover,    694 

Fielden  v.  Blair   465 

Fietsam  v.  Hay   50,    51 

Fire  Ins.  Agency  v.   Merchants,  etc.,  Tel.  Co 2 

First  National  Bank  v.  Tel.  Co 498,  499,  500 

Fisher  v.  Kuhn   074 

V.  West.  U.  Tel.  Co 490 

Fishkill  Savings  Institution  v.  Nat.  Bank 428 

Fitch  V.   Central   New  York  Tel.,  etc.,  Co 178 

Fitzbury  R.  Co.  v.  Gage   233 

Fitzgerald  v.  Connecticut  Paper  Co 190 

V.  Edison  Electric,  etc.,  Co 177 

V.   West.   U.   Tel.    Co 566 

Fleichner  v.  Pac.  Postal  Tel.  Gable  Co 267 

Fleming  v.  Pittsburg,  etc..  R.  Co 184 

Flike  V.  Boston,  etc.,  R.  Co 193 

Flint  V.  Kennedy ^56 

Flint  River  Steamboat  Co.  v.  Foster    597 

Flood  V.  West.  U.  Tel.  Co 175,  190 

Ford   V.  Chicago,   etc.,  R.   Co 93 

V.  Gebhardt 693 

Fogg  V.   Boston,   etc.,   R.    Coro 417,  583 

Forsythe  v.  Baltimore  Tel.   Co 207,  220 

Fortenbury  v.  State   414 

Fort  Wayne  v.  Lake  Shore,  etc.,  R.  Co 144 

Fort  Worth,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.   ...145.  147 

Foster  v.  Smith    4*8 

Fowler  v.  West  U.  Tel.  Co 30,  40,  41,  297,  299,  301,  479 

Fox  v.  Borkey ^""^ 

Francis  v.  West.  U.  Tel.  Co 362.   375,  448,  568 

Fi-anklin   v.    Northwestern   Tel.    Co 10.     1<^ 

Franklin  Bank  v.  Lynch   687 

Franklin    Co.   v.   Nashville,  etc.,   Co 621 


726  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Frauenthall  v.  West.  U.  Tel.  Co 596,  597,  607 

Frazer  v.  West.  U.  Tel.  Co 532 

Freeman   v.   Minneapolis,   etc.,   R.   Co 51 

Friedman  v.  Gold,  etc.,  Tel.  Co 264,  412,  705 

Friend  v.  Woods   ^41 

Friesenham  v.   Michigan   Tel.   Co 174 

Frietsam  v.  Hay   47 

Frink  v.  Potter    475 

Frith  V.  Lawrence  690 

G. 

Gahan  v.  West.  U.  Tel.  Co "• 552,  567 

Galliano  v.  Pierre  &  Co 696 

Gallispie  v.  Gaston  623 

Galveston,  etc.,  R.  Co.  v.  Ball  391 

Galveston,   etc.,   R.   Co.   v.   Moore    463 

Gambrill  v.  Schooley   417 

Gardener  v.  Michigan  Cen.  R.  Co 486 

Gardener  v.  Providence  Tel.  Co 243 

Garrett  v.  West.  U.  Tel.  Co 360,  512,534 

Garrettson  v.  Atchison  Bank 687 

V.   Scofield    624 

Gaudy  v.  Gaudy  451 

Gay  V.   Mut.  U.   Tel.   Co 96,    98 

General  Electric  Co.  v.  Murray   1?'^ 

Geneva  v.  Brush  Electric  Co ISO 

V.   Geneva  Tel.   Co 220 

Gerhardt  v.  Boatmen's  Sor.  Inst 671 

German  v.  McArdle   618 

German  Savings  Bank  v.  Citizen's  Nat.  Bank   665 

Gihbins  v.  Ogden    636 

Gibbs  V.  Consolidated  Gas  Co.   52 

Gibson   v.   Leonard    1^2 

Giese  v.  Schultz   ^48 

Giddens  v.  West,  U.  Tel.   Co 543,  567 

Gillis  V.  Space   ^^^ 

V.  West.  U.  Tel.  Co. 

28,  29,   30,  32,  40,  252,  321,  355,  358,   363,   369,  480 


TABLE    OF   CASES    CITED.  7l27 

[References  are  to  page  numbers.] 

Gilman  v.  Philadelphia    204 

Girandi  v.  Electric  Imp.  Co 184 

Gist  V.  West.  U.  Tel.  Co.    476 

Given  v.  West.  U.  Tel.  Co 280,  331,  334,  335,  421,  612 

Gladstone  v.  Earl  of  Sandwich 59 

Glaize  v.  South  Carolina  R.  Co ' 471 

Glass  V.  Garber   ' 593 

Gleeson  v.  Virginia  Midland  R.  Co 178 

Glenn  V.   South  Ex.  Co 391 

Globe  Print  Co.  V.   Stahl 664,665 

V.  State 663 

Gloucester  Ferry  Co.  v.  Pennsylvania  Co 636 

Goddard   v.   Chicago,  etc.,   R.   Co 102 

v.  Grand  Trunk  R.  Co 582 

Godwin  v.  Tel.  Co 232,  416,  470 

Gold  V.  Pittsburg,  etc.,  R.  Co 143 

Goodlittle  v.  Way   670 

Goodman  v.  Oregon,  etc.,  R.   Co 440 

v.  Walker    449 

Goodsell  V.  West.  U.  Tel.  Co.   410 

Goodspeed  v.  East  Haddan  Bank   579 

Goodtitle  v.  Alker    116 

Gordon  v.  Ashley    175 

Gowan  v.  West.  U.   Tel.   Co.    458 

Graerson   v.   Grass    421 

Graff  V .   Bloomer   341 

Graham  v.  West.  U.  Tel.  Co 551 

V.  West.  U.  Tel.  Co 554 

Grand  Rapids  B.  Co.  v.  Jarvis  92 

Grand   Trunk  R.   Co.   v.   McMillan    434,  436 

Granger's,  etc.,  Ins.  Co.  v.  Kamper   147 

Granson  v.  Gross   421 

Grant  v.  Courter   22 

Grass  v.  N.  Y.,  etc.,  R.  Co 441 

Gray    v.    Iowa   Land    Co 76 

V.  Jackson    270 

v.  Merrian   330 

V.  Mobile,  etc.,  Co 343 


728  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.] 

V.  Mobile  Trade  Co 618 

" V.  New  York  State  Tel.  Co 102,  116 

V.  St.  Louis,  etc.,  R.  Co 148 

V.   Telephone   Co 204,   446,  626 

V.  West.  U.  Tel.  Co. 

41,   258,   259,   260,  273,   304,   415,   552,   574,  604 

Great  Northern  R.  Co.  v.  Eastern  Counties  R.  Co 50 

Great  Western  Railway  Co.  v.  Crouch 434 

V.    Sutton    233 

Greeley,  etc.,  R.  Co.  v.  Yeager   579 

Greeman  v.  West.  U.  Tel.  Co 541 

Green  v.  Boston,  etc.,  R.  Co 482 

V.  West.  U.  Tel.  Co 554 

Greenberg  v.  West.  U.   Tel.   Co 476,  597 

Greenleaf  v.  Illinois  C.  R.  Co 187 

Greenwood  v.  Freight  Co 623 

Gregory  v.   Blanchard    53 

V.  German  Bank   618 

Gregstere  v.   Chicago    84 

Grennell  v.  West.  U.  Tel.  Co 356 

Griesemer  v.  Mut.,  etc.,  Assn 466 

Griffin  v.  Calver    521 

Griggs  V.  Deal    '• 676 

Grimwell  v.  West.  U.  Tel.  Co 29,     30 

Grinnell  v.  West.   U.   Tel.   Co.    316,   393,  482 

Griswold  v.  New  York,  etc.,  R.  Co 357 

Grogan  v.  Adams  Ex.  Co.  v.  Haynes  392 

Grove  v.  Fort  Wayne   90 

Groves  v.  Rowell 91 

Grube  v.  Missouri  Pac.  R.  Co. 485 

Gulf,  etc.,  Ry.  Co.  v.  Baird   431,  442 

v.  Brown • ^92 

V.  Dwyer  442 

y    Geer    304,   407,  432 

V.  Holder    440 

V    Levy    423,  550,   557,  587 

V.   Loonie   306,  307,  512,  526 

V.    Morris    50 


TABLE    OF   CASES    CITED.  729 

[References  are  to  page  numbers.] 

V.   Newell    53,     54 

V.  Southwestern  T.,  etc.,  Co 8,  145,  162 

Gulf,  etc.,  Tel.  Co.  v.  Richardson   558 

Gulf  V.  Wilson 317,  363,  483,  484 

Gunn  V.  Ohio,  etc.,  R.  Co 182 

V.  Tidewater  Canal  Co 49 

Gwynn  v.  Citizens  Tel.  Co 232,  237,  243,  469 

H. 

Haas  V.  Myers    687,   693,  695 

Haber,  etc.,  Hat  Co.  v.  Southern  Bell  Tel.,  etc.,  Co 577,  586 

Hackett  v.  State   2,  3,  17,  22,  23,  28,  213,  216,  217,  238 

Hadd  V.  United   States  Express  Co 270 

Hadley  v.  Baxendale   490,  523 

V.  West.  U.  Tel.  Co.   ..463,  494,  498,  507,  510,  530,  597,  600, 

606,  609,  618. 

Hall  V.  Decier   636 

V.  Sullivan  R.  R.  Co. 49 

Halliday  v.  Kennard   346 

V.   St.   Louis,  etc.,  R.   Co 441 

Hallock  V.  Commercial  Ins.  Co 687 

Hamill  v.  Ashley   671 

Hamilton  v.  Lycoming  Mut.  Ins.  Co 692 

V.  McPhcrson 306 

V.  Stodder    465 

Hammon  v.  Hill    175 

Hammond  v.  Beeson    649,  687 

Hannibal,  etc.,  Co.  v.   Shocklett   624 

Hardwick  v.  Vermont,  etc.,  Tel.   Co 220 

Hargrove  v.  West.  U.  Tel.  Co 303 

Harkness  v.  West.  U.  Tel.  Co. 

266,  282,  289,  299,  327,  354,  385,  448.  478,  512 

Harmon  v.  Columbia,  etc.,  R.  Co 54 

Harmony  v.  Bingham    344 

Harper  v.  West.  U.  Tel.  Co 282 

Harrigan  v.  Chicago,  etc.,  R.   Co 4S6 

Harris  v.  Howard   32 

V.    Louisville,   etc.,   R.   Co.    590 


730  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

V.   Roud    342 

V.  West.  U.  Tel.  Co 262,  371,  408,  477 

Harrisbui-g  v.  Penn.  Tel.  Co 81 

Harrison  v.  West.  U.  Tel.  Co 700 

Harstein  v.  West.  U.  Tel.  Co 544 

Hart  V.  Chicago,  etc.,  R.  Co 351,  358 

V.  Direct  U.  S.  Cable  Co 309 

V.  Rennessaler,  etc.,  R.  Co 441 

V.  Washington  Park  Club  Co 182.  184 

V.  West.  U.  Tel.  Co 29,  36,  119,  356,  359,  506 

Hartzog  v.  West.   U.   Tel.   Co 371,  568 

Hasbrouck  v.  West.  U.  Tel.  Co 305,  307,  308,  309 

Hathaway   v.   East  Tenn.,   etc.,   R.    Co 485 

Haubelt  v.  Rea.,  etc..  Mill  Co 697 

Havens  v.  Hartford,  etc.,  R.  Co 593 

Havey  v.  Mich.  Tel.  Co.    190 

Hawthorn   v.   Fraser    694 

Hay  V.  Columbiana  County  Tel.  Co Ill,  118 

Hayden  v.   Smithfield  Mfg.  Co 193 

Haymond  v.  Saucer   548 

Haynes  v.  Raliegh  Gas  Co 182,  184 

V.  Thomas   112 

Hays  V.  Houston   549,  578 

V.    Kennedy    341,344 

V.  Ottawa,  etc.,  R.  Co 51 

V.   Pennsylvania,   etc.,  Co 229,233 

v.  West.  U.  Tel.  Co 379,  381,  698 

Haywood  v.  Wait 663 

Hazard  v.  Day 673 

Headley  v.  Northern  Transf.  Co 360 

Hearn  v.  West.  U.  Tel.  Co 600 

Heil  V.  St.  Louis,  etc.,  R.  Co 475 

Heimann  v.  West.  U.  Tel.  Co 323,  372 

Heirn  v.  McCaughan  475 

Heland   v.  Lowell    219 

Hencky  v.   Smith    651 

Hendershot  v.  West.  U.  Tel.  Co 283,  310,  478 

Hendrick  v.  Lindsey    455 


TABLE    OF   CASES   CITED.  731 

[  Rof ercnci'S  are  to  page  numbers.  J 

Hendricks  v.  West.  U.  Tel.  Co.    .  .   272,  273,  267,  274,  282,  288,  478 

Hennlng  v.  West.  U.  Tel.  Co 174,  178,  182,  185,  583 

Henisler  v.  Freidnian   $79 

Herfurth   v.  Washington    57g 

Herkell  v.  Pope  L.  R 700 

Hermann   v.  West.  U.   Tel.   Co 371 

Herron  v.  West.  U.  Tel.  Co 402,  514,  522 

Herschfield  v.  Rock.  Mt.  Tel.  Co 77,     gg 

Hess  V.  Baltimore,  etc.,  R.  Co 92 

V.  Missouri  Pac.  R.  Co 391 

Hewitt  V.  West.  U.  Tel.  Co 61,  G2,  98,     109 

Hewlett   V.    West.    U.    Tel.    Co 319,    322,329 

Heyneman  v.  Blake 153 

Hibbard  v.  West.  U.  Tel.  Co 30,  320,  498,  526 

Hibernia  Bldg.  Assn.  v.  McGrath  330 

Hienian  v.  West.  U.  Tel.  Co 333 

Higgins  V.   New   Orleans,  etc.,   R.   Co.    357 

Hill  V.  Surgeon   341 

V.  Syracuse,  etc.,  R.  Co 270,  366 

V.  West.  U.  Tel.  Co 371,  372,  379,  381,  389,  393,  477 

V.  Winson    458 

V.  Woodman   670 

Hill  Mfg.  Co.  V.  Boston   434 

Hinchman  v.  Patterson,  etc.,  R.  Co 93 

Hinkley  v.   Cape   Cod   R.    Co 187 

Hinkel   v.   Murr 188 

Hinton   v.   Dibbon    358 

Hirsh  V.  Northern  C.  R.  Co.,   232 

Hoboken  Printing  Co.  v.  Kahn 579,  582 

Hocker   v.   West.    U.    Tel.    Co 284,    415,  530. 

Hodges  V.  West.  U.  Tel.  Co 81.  102.  137.  139 

Hoffbaur   v.   Railway  Co 323 

Holbrook   v.   Utica,   etc.,   R.    Co 186 

Holladay  v.  Kenwood  34.^ 

Holliday  v.  National  Tel.  Co 174 

Holsey  v.  Rapid  Transit  St.  R.  Co ...   102 

Hood  V.  New  York,  etc.,  R .441 

Hooker  v.  New  Home  &  N.  Co 92 

Hopkins  V.  Atlantic,  etc.,  R.  Co 579,  580 


732  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Hot  Springs,  etc.,  R.  Co.  v.  Tripp    441 

Houghton  V.  Mauerer 697 

Houghton   Com.    Council   v.   Huron    Copper   Mining   Co 154 

Household  F.,  etc.,  Co.  v.   Grant    692 

Houston,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co 145 

V.  Randall    549 

Hovey  v.   Michigan   Tel.    Co 174 

Howe  V.   Planifield    219 

Howley   v.   Whipple    645,    653,  697 

Howser  v.  Cumberland  etc.,  R.  Co 184 

Howsman  v.  Trenton,  etc.,  Co 452 

Hoyt  V.  Jeffers   201 

Hubbard  v.   Concord    188,  189 

V.  West.   U.   Tel.    Co 608 

Huddleston  v.   Hendricks,    75 

Hudson  V.  Chicago,  etc.,  R.  Co 188 

• V.  Northern  Pac.  R.  Co 391 

V.  Postal  Tel.  Cable  Co 278 

Hudson  River  Tel.  Co.  v.  Railway  Co 9,     10 

V.  Watervlict   Turnpike,  etc.,   Co.    201 

V.  Jersey  City, 71,  87,  169,  212,  221 

V.   Meyer,  etc 79 

Hughes  V.  West.  U.  Tel.  Co 271,  506 


Hull  V.  Jones 


697 


Hunn  V.  Gohdenbuck   184 

Hunn  V.  Gohlon  Philadelphia,  etc.,  R.  Co 184 

Hunt  V.   Jennings    617 

Hunter  v.  West.  U.  Tel.  Co 300 

Hussey  v.  Norfolk  So.  R.  Co 578 

Hyde  Park  v.  Oak  Woods  Cemetery  Association   166 


I. 


Ide  V.  Leiser 


695 


Ikard  v.  West.  U.   Tel.  Co 515 

Illinois  C.  Rd.  Co.  v.  Brown    486 

V.  Chicago    1^^ 

V.  Cleveland   Tel.   Co 707 

V.  Cowles    


436 


TABLE    OF   CASES    CITED.  733 

[References  are  to  page  numbers.] 

V.  Frankenburg    269,  395 

V.  Johnson    477 

V.  Morrisson  356 

V.  People    22 

V.  Turner    486 

Indianapolis   v.   Consumers   Gas   Trust   Co 77,     84 

Indianapolis,  etc.,  Rd.  Co.  v.  Erwin  229,  232 

V.  Hartley 93 

In  re  Bellona  Company   145 

Opinion  of  Justices  145 

Pennsylvania  Tel.  Co 202,  625 

Scranton  48 

Insurance  Co.  v.  Boom 342 

V.  Transportation  Co 342 

International,   etc.,   Rd.    Co.   v.    Cock    661 

V.  Eksford 51 

V.  Prince   649,  661 

V.  Telephone,   etc.,   Co 578,   579 

V.  Underwood   391 

Inter-Ocean  Pub.  Co.  v.  Associated  Press 41,  226 

International  Ocean  T.  Co.  v.  Saunders 567 

Iowa  Union  Tel.  Co.  v.  Board  of  Equalization   10,  15 

Irwin  V.  Great  Southern  T.  Co 87,  98,  119 

V.  Nashville,  etc.,  Rd.  Co 441 

V.  Williar 414 

Israel  v.  Redding 660 

Issac  Joseph  I.  Co.  v.  Richardson   687 

J. 

J.  K.  Armsby  Co.  v.  Eskerly 649 

Jackson  v.  Wood  670 

Jacobs  V.  Postal  Tel.  Cable  Co 609 

Jacobs  V.  Lindsey  661 

James  v.  Marion  Fruit  Jar,  etc.,  Co 694 


V.  Patten 


12 


Jaynes  v.  Omaha  St.  R.  Co 106,  107 

Jefferson  v.  Arch  ^^^ 

Jelks  v.  Barrett   ^~^ 


734  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.] 

Jenney  Electric  Light,  etc.,  Co.  v.  Murphy   190,  191 

Jersey   City  v.   Fitzpatrick    116 

Johnson  v.  Alabama,  etc.,  R.  Co 354 

V.  Arunwine v  •  •  •  655 

V.  King   690 

V.  Manhattan  R.  Co 189 

V.  Missouri  Pac.  R.  Co 424 

V.  Northwestern  Tel.  Exch.  Co 181 

V.  Pensacola,  etc.,  R.  Co 230,  233 

V.  State    48,  213,  216 

V.  St.  Louis  Dispatch  Co 417,   583 

V.  West.  U.  Tel.  Co 265,  501,  557 

Johnston  v.  West.  U.  Tel.  Co 375 

Joliet,  etc.,  R.  Co.  v.  Shields   487 

Jones  V.  Roach   435 

V.  West.  TJ.  Tel.  Co 359,  383 

Julia  Bldg.  Ass'n.  v.  Bell  Tel.  Co 19,  96,  100,  109 

Julian  V.  West.  IT.  Tel.  Co 283,  289 

Jurley  v.  Union  Branch  R.  Co .    93 

K. 

Kansas  City  v.  Marsh  Oil  Co 142 

Kansas  City,  etc.,  Bell  Tel.  Co.  v.  Kansas  City,  etc.,  R.  Co 142 

Kansas,  etc.,  R.  Co.  v.  Northwestern,  etc.,  Co 142,  145,  152 

V.  Kier   577 

Kansas  Pac.  R.  Co.  v.  Kessler  587 

. V.  Peavey   590 

.Kaufman  v.  Wilson 663 

Keating  Imp.  Co.  v.  Marshall  Elec.  Light  Co 23 

Keenan  v.  Cavanaugh    458 

Keeny  v.  Grand  Trunk   392 

Kelley  v.  West.  XT.  Tel.  Co 567 

Kelly  V.  McDonald   577 

Kemp  V.  West.  "Union  Tel.  Co. 

38,  174,  212,  267,  268,  270,  353,  354,  357,  363,  369,  419,  536 

Kempner  v.  Cohn    694,  695 

Kendall  v.  West.  U.  Tel.  Co - 266,  301 

Kennebec,  etc.,  R.  Co.  v.  Portland,  etc.,  R.  Co 50 

Kennon  v.  West.  U.  Tel.  Co 515,  551,  594 


TABLE   OF   CASES   CITED.  735 

[References  are  to  page  numbers.] 

Kenton  County  Court  v.  Turnpike  Co 51 

Kentucky  R.  R.  Tax-Case  ^*22 

Kenyon  v.  West.  U.  Tel.  Co 541 

Kerwhacker  v.  Railroad  Co 312 

Kester  v.  West.  Union  Tel.  Co 64,  102,  113,  140,  552,  5CS 

Keyes  v.  Valley  Tel.  Co 174,  190 

Klghtlinger  v.  West.  U.  Tel.  Co 568 

Kiley  v.  West.  U.  Tel.  Co 36.  393,  403,  524 

Kimball  v.  Moreland  ^'86 

King  V.   Kersey   548 

Kingborne  v.  Montreal  Tel.  Co 498.  506 

Kingdom  v.  Montreal  Tel.  Co 524 

Kingford  v.  Hood 487 

Kingsbury  v.  Kerwan 414 

Kinney  v.  McDermott  421 

Kinny  v.  Central  R.  Co 357 

Kirby  v.  Citizen's  Tel.  Co 98.  237,  598 

Kirby  v.  West.  U.  Tel.  Co 237,  605,  615 

Kirton  v.  North  Chicago  St.  R.  Co 577 

Kline  V.  West.  U.  Tel.  Co 568 

Knott  V.  Raleigh  •. 439 

Koeling  v.  Chicago,  etc.,  R.   Co 149,  150 

Koerner  v.   Oberly •  •  ■ : 576 

Koono  V.  West.  U.  Tel.  Co 303 

Kowalsky   v.   Newark  Pass.   R.   Co 180 

Krautz  v.  Brush  Electric  Light  Co 193 

Kruger  v.  Wisconsin  Tel.  Co 102,  110 

Kurtz  V.  Frank 578 

Kyle  V.  Buffalo,  etc.,  R.  Co 481 

L. 

Lackie  v.  Mut.  U.  Tel.  Co 17,  56,  57,  125,  131.  132 

Lacy  V.  Palmer    626 

La  Grange  v.  Southwestern  Tel.  Co 299.  300.  354,  399 

Lainy  v.  United  New  Jersey  R.,  etc.,  Co .75 

Lake  Shore,  etc.,  R.  Co.  v.  Foster   671 

Lakin   v.   Railroad   Co 51 

Lamb  v.   Camden,  etc.,  R.   Co.    "1?.   370 


736  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Lancaster,  etc.,  Turnpike  Road  Com.  v.  Columbus  Tel.  Co 102 

Landie  v.  West.  V.  Tel.  Co 267,  274,  551 

Landsberger  v.  Magnetic  Tel.  Co 498,  510,  513 

Lane  v.  Montreal  Tel.   Co 522 

Langley  v.  West.  U.  Tel.  Co 211,  327,   597 

Larinin  v.  Carleyn   649 

Larkin  v.  West.  U.  Tel.  Co 174 

Lassiter  v.  West.  IT.  Tel.  Co 36,  356,  359 

Lattomus  y.  Farmer's  Mut.  Ins.  Co 671 

Lauman  v.  Lebanon  Valley  R.   Co 49,     51 

Lawrence  v.  Milwaukee,  etc.,  R.  Co 690 

V.   Winona,   etc.,   R.   Co 269 

Leavell  v.  West.  U.  Tel.  Co 209,  232,  237,  265 

Le  Clercq  v.  Gallipolis   112 

Lecoul  V.  Patic  Jury 153 

Lee  V.  Maryland  Tel.,  etc.,  Co 174,  181 

V.  Mound  Station   75 


V.  Selleck 


465 


•  V.  Village  of  Sandy  Hill   578 

V.  West.   U.   Tel.   Co 299 

Leeds  V.  New  York  Tel.  Co 175 

Lefler  v.  West.  U.  Tel.  Co 278 

Lehman  v.  Brooklyn,  etc.,  R.  Co 573 

Leloup  V.  Mobile   222,  620,  627,  628,  629,  636 

Leonard  v.   Henebrickenson    343 

V.  New  York,  etc.,  Tel.  Co. 

30,  297,  306,  463,  490,  491,  497,   528 

Leslie  V.  Harvey 681 

Lester  v.  West.  U.  Tel.  Co 372 

Levet  V.  Creditors 421 

Lewis  V.  Havens    ^^"^ 

V.  West.  U.  Tel.  Co 568,  586 

Liddell   v.    Sehline    ^'^^ 

Lincoln  v.  Erie  Preserving  Co 673 

Linley  v.  Richmond,  etc.,  R.  Co 434.  440 

Lisse  V.  St.  Louis,  etc.,  R.  Co 125 

Little  V.  Chicago,  etc.,  R.  Co 466 

Little  V.  Dougherty ^'^^ 

Little  Nestucco  Road  Co.  v.  Tillamook  Co 142,  143 


TABLE   OF   CASES   CITED.  737 

[References  are  to  page  numbers.] 

Little  Rock,  etc.,  R.  Co.  v.  Corcoran    343 

Little  Rocl£,  etc.,  Tel.  Co.  v.  Davis 

29,  209,  292,  297,  299,  479,  600,  60G,  608 

Little  Rock,  etc.,  Co.  v.  Talbat   392 

Levering  v.  Union  Transfer,  etc.,  Co 366 

Liverpool,  etc.,  Co.  v.  Phoenix  Ins.  Co 361 

Lockhardt  v.  Craig  Street  R.  Co 100 

London,  etc.,  R.  Co.  v.  Evershed 233 

Long  v.  Pennsylvania  R.  Co 182,  184 

Longby  v.  West.  U.  Tel.  Co 617 

Loper   V.   West.   U.    Tel.    Co 474,    518,  550 

Lord  Bailiffs,  etc.,  v.  Trinity  House   186 

Louis  V.  Great  West.  R.  Co 372 

V.  Ludwick   345 

Louisiana  Ice  M'f  g    Co.  v.  New  Orleans   75 

Louisiana  Mut.  Ins.  Co.  v.  Tweed   185 

Louisville  v.   Louisville,  etc 623 

Louisville  Coffin  Co.  v.  Stokes 571 

Louisville,  etc.,  R.  Co.  v.  Fleming   323 

V.  Gatheric    186 

V.  Grant 354 

•  V.  Hull    .* 551 

•  V.  Natches    481 

■  V.  People's  St.  R.,  etc..  Imp.  Co 158 

V.  Postal  Tel.  Cable  Co 125,  140,  156 

■  V.  Railroad  Com 210 

V.  Warren  County 622 

V.  Weaver    270 

V.  Whetley  County   144 

Louisville  Transfer  Co.  v.  American  Dist.  Tel.  Co 247.  470 

Lovemon  v.  Jordan   694 

Lowell  v.  Williams 697 

Lowenburg  v.   Jones    439 

Lowery  v.  West.  U.  Tel.  Co . .  .499,  500 

Lowry  v.   Coster    576 

Lueso  V.  Cannon 561 

Luther  v.  Bridgeman  94 

Lynch  v.  Forbis   153 

Lynn   v.   West.   U.   Tel.   Co 515,  551 

T.    &   T.— 47. 


738  TABLE    OF    CASES   CITED. 

[References  are  to  page  numbers.] 

M. 

MacAndrew   v.   Electric   Tel.    Co 356 

Mackay  v.  West.  U.  Tel.  Co 42,  227,  289,  514,  506 

Mackeon  v.  Citizen's  R.  Co 580 

Maclay  v.  Harvey 694 

Mactier  v.  Frith   465,  690,  692,  694 

Madden  v.  Louisville,  etc.,  R.  Co 150,  156 

Mad  River,  etc.,  R.  Co.  v.  Barber 193 

Magee  V.  Oversliiner   21,  22,  98,  101,  123 

Magie  V.  Herman   653,  688,  697 

Maghee  v,  Camden,  etc.,  R.  Co 392,  442 

Magourik  v.  West.  U.  Tel.  Co 428,  589,  679 

Maguire  v.  Densmore 343 

Mahan  v.  Michigan  Tel.  Co 54,  169,  245 

Mahody  v.  Bushwick  R.  Co 93 

Maine  v.  Grand  Trunk,  etc.,  Co 629,  634 

Malochee  v.   Great  Southern   Tel.,   etc.,   Co 247,   470 

Manier  v.  West.  U.  Tel.  Co 381,  397,  398 

Manley,  etc.,  Wilmington,  etc.,  R.  Co  312 

Manly  Mfg.  Co.  v.  West.  U.   Tel.  Co 308,  309 

Mann  v.  Birchard 292 

Manville  v.  West.  U.  Tel.  Co 26,  289,  354,  362,  496,  510,  512,  523 

Maricopa,  etc.,  R.  Co.  v.  Arizona 624 

Marietta,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co 69,  164,  167,  168 

Markel  v.  West.  U.  Tel.  Co 463 

Market  Street  R.  Co.  v.   Central  R.   Co 92 

Marr  v.  West.  U.  Tel.  Co 306,  355,  363,  369,  393,  494,  530 

Marsh  v.  West.  U.  Tel.  Co 551,  552 

Marshfield  v.  Wisconsin  Tel.  Co 71 

Marshall  v.  Eisen  Vineyard  Co 687 

687 

544 

188 


V.  Jamison 


Martin  v.   Sunset  Tel.   Co. 


V.  Towe 


V.  West.  U.  Tel.  Co 438,  453,   455,   513,   567 

Marvin  v.  West.  U.  Tel.  Co • 387 

Maryland  Tel.,  etc.,  Co.  v.  Cloman 190 

Masher  v.  South  Ex.  Co 436 

Mason  v.  Warner   ^^^ 


TABLE    OF   CASES    CITED.  739 

[Uiftreiicos  nro  to  page  numbers.] 

Massengale  v.  West.  U.  Tel.  Co 371,  372,  379,  397 

Matteson  v.  Noyes   657 

Mattie  Bloomfield,  etc..  Gas  Light  Co.  v.  Richardson  125 

Mattis  V.  West.  U.  Tel.  Co 616 

Maxwell  v.  Central  Dist,  etc.,  Tel.  Co 57,  58,  117,  119 

May  V.  Cincinnati   632 

V.  West.  U.  Tel.  Co 453,  460 

Mayberry  v.  Johnson   670 

Mayer  v.  Frobe 577 

Maynard  v.  Fireman's  Fund  Ins.  Co 417,  580 

V.  Syracuse,  etc.,  R.  Co 357 

Mayne  v.  Fletcher  418 

Mayor  v.  Bailey  178 

Mayor,  etc.,  of  Mobile  v.  Yisille   ......    22 

Mayo  V.  West.  U.  Tel.  Co 211,  213 

McAfee  V.  Southern  R.  Co.  597 

McAllen  v.  West.  U.  Tel,  Co 473,  498,  507,  556,  559,  586 

McAndrew  v.  Electric  Tel.  Co 26,     27 

McArther  v.  Dryden   459 

McBlain  v.  Cross  672 

McBride  v.   Sunset  Tel.  Co 490,   552,  567 

McCall  V.  California 636 

V.  West.  U.   Tel.   Co 498,504,506 

McCamm  v.  Johnson  County  Tel.  Co 94 

McCarlie  v.  Atkinson 417 

McCarn  v.  Int.,  etc.,  R.  Co.   432,  434 

McCarthy  v.  West.  U.  Tel.  Co 558 

Mccarty  v.  Gulf,  etc.,  R.  Co.  ....   269 

V.  Southern,  etc.,  Tel.  Co 190,  191 

McConnell  v.  Kibbs   115 

McCord   V.   Pike    22 

V.  West.  U.  Tel.  Co 427,  429 

McCormick  v.  Dist.  of  Columbia   88,  123 

V.  Joseph   655 

McCraig  v.  Erie  R.  Co 186 

McCraine  v.  Wood   345 

McCulley  v.  Cunningham 158 

McCulloch  V.  Eagle  Ins.  Co 692 


740  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.] 

McDonald  v.  Postal   Tel.   Co.    175 

McDuffee  v.  Portland,  etc.,  R.  Co 229,  230 

McElroy  v.  Buck 673,  675 

V.  Levey    673 

McFee  v.  Vicksburg,  etc.,  R.  Co 580 

McGee's  Appeal   75 

McGraw  v.  Baltimore,  etc.,  R.  Co 344 

McGregor  v.  Wtest.  U.  Tel.   Co 536 

McHenrich  v.  Mississippi,  etc.,  R.  Co 312 

Mclsaac  v.  Northampton,  etc.,  Co 191 

McLaren  v.  Detroit,  etc.,  R.  Co 432 

McLaurin  v.  West.  U.  Tel.  Co 615 

McMahon  v.  Ida  Min.  Co 192 

McMurty  v.  Louisville,  etc.,  R.  Co 485 

McPeek  v.  West.  U.  Tel.  Co. 

265,  310,  334,  448,  458,  483,  486,  512,  514,  540 

McQueen  v.  Middleton  Mfg.  Co 471 

Meader  v.  White  421 

Meadows  v.  West.  U.  Tel.  Co 513,  515,  516,  551,  616 

Meggett  V.  West.  U.  Tel.  Co 524,  527 

Meinett  v.  Snow   687 

Melchert  v.  Am.  U.  Tel.  Co , 415 

Memphis  Bell  Tel.  Co.  v.  Hunt  20,  120,  121,  124 

Memphis,  etc.,  R.  Co.  v.  Birmingham,  etc.,  R.   Co 158 

Menacho  v.  Ward 232,  233 

Mentzer  v.  West.  U.  Tel.  Co 457,  493,  551,  562 

Mercantile  Trans.  Co.  v.  Atlantic,  etc.,  R.  Co 69 

Mercantile  Trust  Co.  v.  Atlantic,  etc.,  R.  Co 165 

Merchant's  Bank  v.  State  Bank   486 

Merchant's  Dispatch,  etc.,  Co.  v.  Moore   402 

Merchants'  Nat.  Bank  v.  Wheeling  First  Nat.  Bank   653 

Merrick  v.  Van  Sautvoord 148 

Meridian  V.  West.  U.  Tel.  Co 71,     82 

Merrill  v.  American  Ex.  Co 391 

V.  West.  U.  Tel.  Co 496,  501 

Merritt  v.  Earle   344 

Merriweather  v.  Garrett   621 

Merriweather,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co 167 

Messenger  v.  Pennsylvania  R.  Co 232 


TABLE    OF   CASES    CITED.  7-H 

[References  are  to  page  numbers.] 

Metallic,  etc.,  Co.  v.  Fitchburg  R.  Co.   -158 

Metropolitan  Board  v.  Barrie   22 

Metropolitan  Grain  &  Stock  Exch.  v.  Chicago  Board  of  Trade  240 

V.  Mutual  U.  Tel.  Co 412,  705 

Metropolitan,  etc.,  Tel.  Co.  v.  Colwell   Lead  Co 102,  109 

Meyer  v.  Manhattan,  etc.,  Co 486 

V.  Village  of  Teutopolis   76 

Michaels  v.  New  York,  etc.,  R.  Co 344' 

Michigan  Tel.  Co.  v.  Boston  Harbor   73 

V.  Charlotte   63,  171 

V.  St.  Joseph 53,  54,  168,  169,  172 

Mickel-wait  v.  West.   U.   Tel.   Co 524 

Middle  Brig.  Co.  v.  Marks   148 

Midland  Railway  v.  Bromley 442 

Mielholland   v.   Thompson-Houston  Elec.   Light   Co 23 

Miles  V.  Postal  Tel.  Cable  Co 175 

Miliani  v.  Toguini 459 

Millard  v.  Brown 577 

Miller  v.  Butler    417 

V.  Ewer  148 

V.  Mariners'  Church   305 

V.  Nugent   687 

V.  Rutland,  etc.,  R.  Co 50 

V.  Spaterman 114.  115 

■  V.  Steam   Navigation   Co 341 

Millikin  v.  Pratt   465 

V.  West.    U.    Tel.    Co 291,    453,    455,    476,    493 

Milton  V.  Denver,  etc.,  R.  Co 342 

V.  Hunter    561 

Milwaukee,  etc.,  R.  Co.  v.  Kellog 342 

Minnesota  Linseed  Oil  Co.  v.  Collier  White  Lead  Co.  .687,  692,  694 

Missouri   ex  rel.  v.  Bell   Tel.   Co.    240,   246 

Missouri  Furnace  Co.  v.  Abend 187 

Missouri  Pac.  R.  Co.  v.  Breeding   440 

v.  Heidenheimer    666 

v.  International,  etc.,  Co 357 

v.  Mackey    


V.  Richmond 


584 


742  TABLE   OF   CASES   CITED. 


[Ueferences  are  to  page  numbers.] 

V.  Sherwood 357 

V,  Texas   589 

V.  Twiss    444 

V.  Wichita,  etc.,  Co 439,  477 


Mitchell  V.  West.  U.  Tel.   Co 308,  363,   445,  694 

Mobile  V.  Port  of  Mobile  637 

Mobile,  etc.,  R.  Co.  v.  Edwards 660 

V.  Houkins    354 

V.  Postal  Tel.  Cable  Co. 

131,  141,  142,  144,  145,  146,  151,  152,  153,  160,  162,  163 

V.  Weiner    366 

Monahan  v.  Miami  Tel.  Co 181 

Mondon  v.  West.  U.  Tel.  Co. 537 

Monson  v.  Lathrop   417 

Montgomery  v.  Muskegon  Booming  Co 182 

•  V.  Parker    89 

V.  West.  U.  Tel.  Co 615 

Montgomery,  etc.,  R.  Co.  v.  Moore   439 

Montreal  Gas.   Co.  v.  St.  Lawrence    589 

Monville  v.  West.  U.  Tel.  Co 369 

Moodj'  V.  Leverich 538 

Moore  V.  Eufaula   63,  208,  223 

V.  Kendall   421 

V.  Shreveport    187 

V.  West.  U.  Tel.  Co 598 

Moose  V.  Carson 75 

Moran  v.  New  Orleans  636 

Morgan  v.   Louisiana    49 

V.  People   663 

Morning  Journal  Assn.  v.  Rutherford 584 

Morrell  v.  Pack 188 

Morris  v.  Hermen 682 

■  V.  Missouri   Pac.   R.   Co 466 

V.  West.  U.  Tel.  Co.   414 

Morris  Canal,  etc.,  Co.  v.  Townsend 148 

Morris,  etc.,  R.  Co.  v.  Ayres    323,  324 

Morrison  v.  West.  U.  Tel.  Co 556 

Morristown  v.  East  Tenn.  Tel  Co 169 

V.  Keystone  Tel.,  etc.,  Co 171 

Morrow  v.  West.  U.  Tel.  Co 518,  563 


TABLE    OF   CASES   CITED.  743 

[References  are  to  page  numbers.] 

Morse  v.  Bellows  694 

V.  Minneapolis,   etc.,   R.    Co 188 

V.  Slue   345 

Morton  v.  West.  U.  Tel.  Co 566,  568 

Moss  V.  Pacific  R.  Co 193 

Moulton  V.  St.  Paul,  etc.,  R.  Co 355 

Mourmouth  County  Electric  Co.  v.  Central  R.  Co 124 

Mowry  v.  West.  U.  Tel.  Co.   494,  511,  526 

Munn  V.  Illinois   22,  21.3,  214,  215,  226,  235,  632 

Munroe  v.  Thomas   51 

Murphy  v.  Deane 312 

Murray   v.    Flavell    451 

Murrell  v.  Diggs 668 

Muschamp  v.  Lancaster  &  P.  J.  R.  Co 435 

Musgrove  v.  Viclcsburg,  etc.,  R.  Co 618 

Muskogee  Nat.  Tel.  Co.  v.  Hall    60,  166 

Mutual  U.  Tel.  Co.  v.  Chicago   84,  85,  118,  119,  206,  220,  221 

Myers  v.  Hudson  Iron  Co 190 

Mynning  v.  Detroit,  etc.,  R.  Co 485,  486 

N. 

Naglee  v.  Alexandria,  etc.,  R.  Co 53 

Nalley  v.  Hartford,  etc.,  Co 188 

Nashville,  etc.,  R.  Co.  v.  David  341 

V.  Estis   345 

V.  Spraybury 270 

National  Bank  v.  National  Bank    681 

National  Foundry  Works  v.  Oconto  U.  Co 53 

National  Tel.  News  Co.  v.  West.  U.  Tel.  Co 707 

Naylee  v.  Alexandria,  etc.,  R.  Co 51 

Naves  v.  Smith 193 

Nebraska  Tel.  Co.  v.  Jones    • 180 

v.  State 213,  242 

V.  West  Independent  Long  D.  Tel.  Co 74 

V.  York  Gas  Light  Co 201 

Neely  v.  State   ^^ 

Nelson  v.  Boyston ^''l 

.  V.  West.  II.  Tel.  Co 503,  506 

Newberg  Petroleum  Co.  v.  Weare 1-18 

New  Brunswick,  etc.,  Co.  v.  Tiers   ^-^l 


744  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Newcomb  v.  De  Roose    695 

New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank 22 

Newman  v.  West.  U.  Tel.  Co 568 

New  Orleans  v.  Kaufman   622 

New  Orleans,  etc.,  R.  Co.  v.  Gray   153 

V.  Hurst    475 

V.  Rabasse   158 

V.  Schmeider   589 

V.  Southern,    etc.,   Tel.    Co. 

7,  17,  69,  82,  84,  125,  136,  144,  169,  170,  212,  222,  223,  632,  633 

•  V.  Statham    576,  580 

Newson  v.  Charles  Street  Ave.  Co 75 

V.  Jackson  655 

Newton  v.  Ala.,  etc.,  R.  Co 158 

New  York  City  v.  Second  Ave.  R.  Co 632 

New  York,  etc.,  Co.  v.  Bennett    174 

V.  Bound  Brook 7 

V.  Central  U.  Tel.  Co 141 

V.  East  Orange 77,  87,  85,  221 

V.  Dryburg  .  .30,  297,  299,  306,  399,  428,  453,  459,  528,  697,  464 

V.  Metropolitan  G.  L.  Co 145 

V.  Sabin 624 

V.  Schuyler  57S 

V.  Winans    51,  52 

• •  V.  Young 148 

New  York  Rubber  Co.  v.  Rothery  593 

Nicholas  v.  New  York,  etc.,  R.  Co 357 

Nichols  v.  Hubbard 59 

Nicholds  V.   Minneapolis 19,  177,  180,  186 

Nickerson  v.  Spindell    653 

Nicoll  V.  New  York,  etc.,  Tel.  Co 70,  102,  103,  123 

Norfolk,   etc.,   R.   Co.   v.   Wysor    . '. 475 

Norman  v.  West.  TJ.  Tel.  Co 275,  279 

Norris  v.  Blair   674 

V.  Litchfield    312 

Norristown  v.  Keystone,  etc.,  Co 171 

Norshfield   v.   Wisconsin   Tel.   Co 80,  118 

Northcates  v.  Bochelder    193 

North  Chicago  St.  R.  Co.  v.  Duchner  567 


TABLE    OF   CASES   CITED.   .  74r> 

[Referencci  are  to  page  numbers.] 

North  Missouri,  etc.,  Co.  v.  Maguire   621 

North   Packing,    etc.,    Co.   v.   West.    U.    Tel.    Co 362 

Northern,  etc.,  R.  Co.  v.  Mares 487 

Northwestern   Tel.   Exch.  Co.  v.  Anderson    169,   212,   221 

V.  Chicago,  etc.,  R.  Co 8.  68,  140 

V.  Minneapolis 73,  169,  220 

V.  Twin  City  Tel.  Co 168 

Norton  v.  Small    460 

Numedy  v.  Chase   192 

Nye  V.  West.  U.  Tel.  Co 418 

O. 

Oakland  R.  R.  Co.  v.  Oakland,  etc.,  Co 47 

Oakman  v.  Rodgers   674 

O'Hare  v.  Railroad  Co 151 

Ohio  Life  Ins.,  etc.,  Co.  v.  Merchants  Ins..  etc.,  Co 148 

Ohio  Rd.  Co.  V.  Applewhite   267 

V.  Dunn    486 

Oil  Creek,  etc.,  R.  Co.,  v.  Keighorn  185 

Olcott  V.  Supervisors   22 

Old  Colony  R.  Co.  v.  Tripp   323 

Old  Colony  Trust  Co.   v.  Wichita    84,   172 

Omaha  v.  Flood    57,  58,  117 

Oregon  R.  Co.,  etc.,  Co.  v.  Oregonian  R.  Co 52,    53 

Oregon   Short  Line  R.   Co.  v.   Postal  Tel.   Cable   Co 144 

Oregon  Steamship  Co.  v.  Otis    644.  646.  653.  656,  657 

Orr  V.  Bank  of  U.  S 578 

Osborn  v.  New  York,  etc.,  Co 624 

Osborne  v.  State   208.  627 

Oskamp  v.  Gadsen   ^^"^ 

Ottawa  V.  Sweely ^^^ 

Owens-boro-Harrison  Tel.  Co.  v.  Wisdom  242.  245.  247 

P. 

Pacific,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  Co 60.   61,    74 

.  V.  Fleischner   387,  490.  513.  544 

V.  Irwin 102.109 

V.  Palo  Alto  Bank  427 

V.  Underwood    40,   375,   376 


746  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

V.  West.  U.  Tel.  Co 69 

Packard  v.  Taylor   342,  344 

Paducah  Lumber  Co.  v.  Paducah,  etc.,  Co 452 

Paine  v.  Tillinghost 671 

Palmer  v.  Atchison,  etc.,  R.  Co 361 

Palmer  v.  M.  P.  Rolling  Mill  Co 674 

Park  V.  Detroit  Free  Press  Co 418 

V.  Whitney   694 

Parker  v.  Flagg  34I 

V.  Smith   624 

Parkinson  v.  State   598 

Parks  V.  Alta,  etc.,  Tel.  Co 26,  27,  249,  494,  495,  544 

Passmore  v.  West  U.  Tel.  Co.   30,  393 

Patah  V.  Covington   186 

Pate  V.  Wright . .   422 

Patrick  v.  Bowman   686 

Patton  V.  Chattanooga 98 

Paul  V.  Coover 76 

Pearce  v.  Drew 20 

V.  The  Thomas  Newton 341,  342 

Pearsall  v.  West.  U.  Tel.  Co 356,  393,  402,  479,  481,  526,  698 

Pearson  v.  West.  U.  Tel.  Co 39 

Peay  v.  West.  U.  Tel.  Co 567 

Peck  V.  Chicago,  etc.,  R.  Co 210 

V.  Smith    104 

V.  Vandemark   674 

Peddicord  v.  Baltimore,  etc.,  R.  Co 92 

Peebles  v,  Patasco  Guano  Co 578 

Pegram  v.  West.  U.  Tel.  Co.  268,  324,  356,  359,  464,  500,  700,  701 

Peidmont  Electric  Illuminating  Co.  v.  Patterson   193 

Pelham  v.   Steamboat  Messenger    597 

Pennington  v.  West.  U.  Tel.  Co. 524 

Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co. 

17,  61,  62,  63,  68,  69,  70,  136,  166,  167,  175,  620,  626,  636 

Pennsylvania  Co.  v.  Stegemeir   486 

Pennsylvania,  etc.,  Ins.  Co.  v.  Mechanic's,  etc.,  Co.   466 

Pennsylvania,  etc.,  R.  Co.  v.  St.  Louis,  etc.,  R.  Co 49,  51,     53 

Pennsylvania  Tel.   Co.  v.  Varnan   175,  188,   189 

People  V.  Albany,  etc.,  R.  Co 50 


TABLE    OF    CASES    CITED.  747 

[References  are  to  page  numbers.] 

V.  Budd   213.  214 

V.  Central  New  York,  etc.,  Co 246 

V.  Chicago   Trust  Co 51 

V.  Dolan    628,  C30 

V.  Eaton   98,  100 

V.  Hammond    644,  649,   656 

: V.  Hudson  River  Tel.  Co 243,  338 

V.  Lambert 650 

V.  Manhattan  Gas  Light  Co 238 

V.  Metropolitan  Tel.,  etc.,  Co 118,  119 

V.  Mut.  Tel.  Co 90 

V.  People's  Ins.  Exch 485,  486 

V.  Squire 63,  170,  171,  205,  206,  207,  220 

V.  Supervisors  of  Ouida  County 92 

V.  Tierney   628 

V.  Village  of  Brighton    153 

V.  Ward 663,  664 

V.  Wabash,  etc.,  R.  Co ,   231 

V.  Wemple   208 

V.  West.  U.  Tel.  Co 338 

People's  Pass  R.  CoTv.  Baldwin :   169 

People's  Tel.,  etc.,  Co.  v.  Burks,  etc.,  Turnpike  Road  8,    74 

Peorey  v.  Railroad  Co 151 

Pepper  v.  West.  U.  Tel.  Co. 

22,  40,  270,  306,  355,  363,  369,  457,  465,  511,  512,  532,  698,  700,  701 

Perkins  v.  Portland,  etc.,  R.  Co 434 

Perry   v.    Dickerson    538 

V.  German  American  Bank   644 

V.  Mt.  Hope  Iron  Co 466   695 

■  V.  New  Orleans,  etc.,  R.  Co 116 

Persall  v.  West.  U.  Tel.  Co 270,  271,  280,  299 

Peterson  v.  Case  ^^^ 

V.  Chicago,  etc.,  R.  Co 441 

V.  West.  U.  Tel.  Co 417,  589 

414 
Pexley  v.  Bayton    

Phelps  V.  Stillings    '^''* 

V.  Winona,  etc.,  R.  Co 189 

Philadelphia  v.  Postal  Tel.  Cable  Co 222 

V.  West.  U.  Tel.  Co ^^ 

Philadelphia,  etc.,  R.   Co.   v.   Anderson    184 


748  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

V.  Hoeflich   580 

V.  Pennsylvania 636 

V.  Quigley  584 


Philadelphia  Fire  Assn.  v.  New  York   212 

Phillips  V.  Denver  87 

•  V.  Dickerson 186 

V.  Hoyle    549 

V.  North  Car   434 

V.  Postal    Tel.    Cable    Co 64,  136 

V.  West.  U.  Tel.  Co 383 

Philipson  v.  Bates   655,  657 

Pickerson  R.  M.  Co.  v.  Grand  Rapids,  etc.,  R.  Co 435 

Pierce  v.  Drew    17,   98,   100,   109,   123,   125 

V.Emery   51,    52 

Pinckney  v.  West.  U.  Tel.  Co 32,  251,  252,  297,  393 

Piollet   V.    Sininurs    189 

Pitlock  V.  Wells   438 

Pittsburg,  etc.,  R.  Co.  v.  Allegheny  County   50 

V.  Backers 628 

• V.  Hozen    348 

V.  Karns 312 

V.  Lyon   323 

V.  Nuzzum 267 

V.  Slasser   581 

V.  State 621,  623 

Plaisted  v.  Palmer   421 

Platz  V.  Cohoes   424 

Playford  v.  United  Kingdom,  etc.,  Tel.  Co 446,  451 

Polack  V.  Trustees  of  San  Francisco  Orphan  Asylum 76 

Poling  V.  Ohio  River  R.  Co 487 

Pope  V.  West.  TJ.  Tel.  Co 266,  271,  274  289,  290,  305,  617 

Port  V.  Davis   687 

Portance  v.  Lehigh  Valley  Coal  Co 192 

Portsmouth,  etc.,  R.  Co.  v.  Forseyth,  231 

Postal  Tel.  Co.  v.  Adams   620,  626,  627,  628 

V.  Alabama,   etc.,   R.   Co 158 

■ ■  V.  Baltimore 81 

V.  Barwise 490 


TABLE    OF    CASES    CITED.  749 

[References  are  to  page  iiutuberB.] 

V.  Bruen 115 

V.  Charleston    632 

V.  Chicago,  etc.,  R.  Co 144 

V.  Cleveland,  etc.,  R.  Co 70.  145,  148 

V.  Coats   175 

V.  Coote   190 

•  V.  Eaton 102,  115.  IIC,  123 

V.  Farmville,   etc.,   R.   Co 145 

V.  Jones 174,  180,  183.  184,  187 

V.  Lathrop    268,   506,   513,   514 

V.  Louisiana  Western  R.  Co 141,  142,  144 

V.  Louisville,   etc.,  R.   Co 158,   160,   162 

V.  Morgan's  Louisiana  R.,  etc.,  Co. 

70,  71,  72,  73,  125,  135,  144,  162 

V.  Norfolk,   etc.,   R.   Co 71,   72,   113,   ]26,   135,    140 

■  V.  Oregon  Short  Line  R.  Co. 

125,  140,  143,  144,  145,  146,  149,  151,  152,  153,  154,  155,  160,  162 

. V.  Rhett   266,  523,  526 

V.  Richmond    620,   626,   627,  638 

V.  Robertson    360 

V.  Schaeffer   306,  362,  532 

V.  Southern  R.  Co 70,  135,  145 

V.  Vane   24 

V.  Zappi    I'^S 

Potter  V.    Springfield   Milling   Co 671 

Potts  V.  West.  U.  Tel.  Co 516 

Potuliu  V.  Sanders   428 

Potwin  Place  v.  Topeka  R.  Co 469 


Powell  V.  Brunner 


649 


Prather  v.  Railway  Co 323 

Prather  v.  Wilkins ^55 

Presbyterian  Church  v.  New  York  City    20." 

Press  Pub.  Co.  v.  Munroe   577 

Primrose  v.  West.  U.  Tel.  Co 324,  389,  393,  490.  50.^ 

Pugh  V.  City,  etc.,  Tel.  Co 242,  337.  416 

Pullman  v.  Cincinnati,  etc.,  R.  Co 51 

Pullman  Palace  Car  Co.  v.  Pennsylvania    627.  629 

Purcell  v.  St.  Paul  City  R.  Co 573 

Pursell  V.  English  ^°^ 


750  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.] 

Q. 

Queen  v.  Peters  482 

Quill  V.  Empire  State  Tel.  Co 181 

Quimby  v.  Boston,  etc.,  R.  Co 357 

R. 

Ragan   v.   Aiken    50,  232 

Haggles  V.  Illinois 22 

Haggles  V.  People 22 

Raht  V.  Southern  R,  Co 75 

Railway  Commissioners  v.  West.  U.  Tel.  Co 213 

Railroad  Company  v.  Brown   51 

V.  Fuller   22 

V.  Griffin   552,591 

V.  Manchester  Mills  392 

V.  Pitty   151 

V.  Railway  Company 166 

V.  Reeves  343 

V.Richmond 22 

V.  Speer 151 

V.  West.  U.  Tel.  Co 211 

Ralston  v.  Weston 75 

Ramsdale  v.  Horton  453 

Randall  v.  Baltimore,  etc.,  R.  Co. 485 

Rapid  T.  Co.  v.  Hess 220 

Rasser  v.  West.  U.  Tel.  Co 287 

Ratterman  v.  West.  U.  Tel.  Co.   636 

Read  V.  Spaulding  341,  344 

Readman  v.  Conway 188 

Reagan  v.  Mercantile  Trust  Co 640 

Reckmond  v.  Southern  Bell  Tel.,  etc.,  Co 16 

Redfleld  v.   Shearman    550 

Redington  v.  Pac.  Postal  Tel.  Cable  Co. 480 

Redpath  v.  West.  U.  Tel.  Co 36,  356,  393 

Reed  v.  West.  U.  Tel.  Co. 

21,  36,  39,  40,  226,  227,  237,  271,  299,  362,  464,  478,  515,  532,  551,  554,  698 

Regina  v.  United  Kingdom  Electric  Tel.  Co 87,  90,  118 

Reiff  V.  West.  U.  Tel.  Co 50 


TABLE    OF   CASES   CITED.  701 

[RefereDces  are  to  page  nombers.] 

Reis  V.  Hillman   OCO 

Reliance  Lumber  Co.  v.  West.  U.  Tel  Co 498,  503,  524,  654,  657 

Renihan  v.  Wright 548 

Reuth  V.  Electric  Tel.  Co 227 

Rex  V.  Johnson  561 

Reynolds  v.  West.  U.  Tel.  Co 287,  306,  524,  534,  646 

Rice  V.  Kansas  Pac.  R.  Co 391 

V.  Sovery   • 159 

Richards  v.  Merrimac,  etc.,  R.  Co. 50,     51 

Richardson  v.  Sibley   49,  51,     52 

Richie  V.  Bass   646,  647 

Ricker  v.  New  York,  etc.,  Co 178 

Richketts  v.  Chesapeake,  etc.,  R.  Co 54 

V.  West.  U.  Tel.  Co 561 

Richmond  v.  Southern  Bell  Tel.  Co 7,  16,  62,  70,  169 

V.Sandburg    649,687 

Richmond,  etc.,  R.  Co.  v.  Anderson  312 

V.  Jefferson    582 

Richmond  Water  Works  Co.  v.  Richmond   50 

Richwald  v.  Commercial  Hotel  Co 148 

Rigmy  v.  City  of  Chicago 92 

Riley  v.  Farnsworth  674 

V.  West.  U.  Tel.  Co 387 

Riordan  v.  Guggerty 656 

Rippey  V.  Miller 577 

Rittenhouse  v.  Independent  Line  of  Tel. 

299,  307,  464,  479,  511,  514,  530,  698 

Rixke  V.  West.  U.  Tel.  Co 600,  607 

Roach  V.  Jones ^1  •"»'  551 

Road  V.  Chicago,  etc.,  R.  Co 618 

Roake  V.  American  Tel.,  etc.,  Co 7,  111,  132 

Roberts  v.  Wisconsin  Tel.  Co 7,  15,  175.  181,  182 

Robinson  v.  West.  U.  Tel.  Co 545,  561,  565 

Robinson  Match  Works  v.  Chandler  687 

Roche  V.  West.  U.  Tel.  Co 286 

Rocke  V.  American  Tel.,  etc.,  Co 132 

Rockford  V.  Tripp    ^^^ 

Roddy  V.  Missouri  Pac.  R.  Co 182 


752  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.] 

Rogers  v.  West.  U.  Tel.  Co 422,  600,  601 

Rohe  V.  West.  U.  Tel.  Co 285 

Rolseth  V.  Smith   190 

Root  V.  Long  Island  R.  Co 230 

V.  Great  Western  R 434 

Roper  V.  Claj' 548 

V.  McWhorter 49,     50 

Rose  V.  United  States  Tel.  Co 461,  697 

Ross  V   West.  U.  Tel.  Co 311,  313 

Rosser  v.  West.  U.  Tel.  Co 299,  556 

Rowell  V.  West.  U.  Tel.  Co 490,  555,  559 

Rowen  V.  Portland 112 

Ruse  V.  West.  U.  Tel.  Co 301 

Rushville   Co-operative  Co.   v.   Irvin    242,  337 

Russ.  V.  Penn.  Tel.  Co 118 

Russell  V.  West.  U.  Tel.  Co 397,  398,  567 

Ryan  v.  Fowler 193 

V.  Missouri,  etc.,  R.  Co 343 

Ryn  V.  Darby 421 

S. 

Samuels  v.  Richmond,  etc.,  R.  Co 578,  580 

San  Antonio,  etc.,  R.  Co.  v.  Limberger  103 

V.  Southwestern  Tel.  Co 8,  12,  13,  20,  162 

Sanders  v.  Stuart 506 

Sanford  v.  Howard   694 

San  Francisco  v.  West.  U.  Tel.  Co 626,  640 

Sangamore,  etc.,  Co.  v.  Morgan 621 

Sargent  v.  Boston,  etc.,  R.  Co 233 

Savannah,  etc.,  R.  Co.  v.  Harris  440 

■  V.  Mayor,  etc.,  of  Savannah   92 

V.  Postal  Tel.  Cable  Co 144,  147,  151 

Saveland  v.  Green 652,  653,  687,  688,  697 

Savings  Bank  v.  Thornton 452 

Sawyer  v.  Davis 215 

Saybolt  v.  New  York,  etc.,  T.  Co 186 

Scanton  v.  Boston,  etc.,  R.  Co 190 

Schaff  V.  Cleveland,  etc.,  R.  Co 102 


TABLE   OF   CASES    CITED.  753 

[References  are   to  page  numbers.] 

Schaffer  v.  Sawyer 697 

Schearer  v.  Harbor   667 

Scheffer  v.  Washington,  etc.,  R.  Co 499 

Schippel  V.  Norton   584 

Schmidt  v.  Draper 75 

Schneider  v.  Sampson   421 

Schofield  V.  Chicago,  etc.,  R.  Co 485 

V.  Horse  Spring  Cattle  Co 663 

V.  Lake  Shore,  etc.,  R.  Co 232,  233 

Schouberg  v.  Chemy  687 

Schultz  V.  Phoenix  Ins.  Co 687 

Schurmeir  v.  St.  Paul   113 

Schwartz  v.  Atlantic,  etc.,  Tel.  Co 30,  383,  393 

Scothern  v.  South,  etc.,  R.   435 

Scott  V.  Jarnague  on  Tel 569 

Seaver  v.  Boston,  etc.,  R.  Co 193 

Seaboard  Mfg.  Co.  v.  Woodson   593 

Seaboard  Tel.,  etc.,  Co.  v.  Kearney  84,  220 

Searles  v.  Manhattan  R.  Co 186 

Seifert  v.  City  of  Brooklyn 92 

Selden  v.  Cashman  577 

Senaca  Road  Co.  v.  Auburn,  etc.,  R.  Co 593 

Sewell  V.  Cohoes 188 

Shank  v.  Butch   647 

Shapp  V.  Jones  '^48 

Shawyer  v.  Chamberlain 663,  665 

Sheffield  v.  Central  U.  Tel.  Co 19,  77,  174,  180 

Sheldon  v.  West.  U.  Tel.  Co 175,  205 

Shepard  v.  Gold,  etc.,  Tel.  Co 323,  412,  705 

Shepherd  v.  Baltimore,  etc.,  R.  Co 114,  115 

Sheply  V.  Atlantic,  etc.,  R.  Co 50 

Sherrill  v.  West.  U.  Tel.  Co 278,  299,  354,  372,  402,  474,  515,  551 

Sherwin  v.  Nat.  Cash  Reg.  Co 696 

Shingleur  v.  West.  U.  Tel.  Co 271,  306,  446,  457.  700 

Shorpless  v.  Ullay,  etc.,   -- 

Short  V.  Threadgill    •  687.  690 

Show  V.  Postal,  etc.,  Cable  Co 361 

T.  &  T.— 48. 


754  TABLE    OF    CASES   CITED. 

[References  are  to  page  numbers.] 

Sices  V.  Lowell,  etc.,  R.  Co 1'74 

Silver  Creek,  etc.,  Co.  v.  Mangum   585 

Simmons  v.  West.  U.  Tel.  Co 563,  575 

Singer  Mfg.  Co.  v.  Hardee 212 

V.  Holdford    697 

Sinking  Fund  Case  215 

Skipp  V.  The  E.  C.  R.  Co 193 

Slater  v.  South  Carolina  R.  Co 342 

Slaughter  House  Cases   22 

Smith  V.  Arnold   674 

V.  Banker   618 

V.  Bouvier    414 

V.  Easton 645,  653,  656,  672,  699 

■ V.  Gold,  etc.,  Tel.  Co 32S.  412,  705,  706 

V.  Mo.,   etc.,   R.    Co 442 

V.  New  York,  etc.,  R.  Co 357,  424 

V.  North  Carolina  R.  Co 392 

V.  Peninsular    C.   Works    193 

V.  Turner    •  • . .   636 

V.  West.  U.  Tel.  Co. 

29,  40,  257,  258,  259,  266,  268,  269,  273,  325,  327,  350,  354, 

368,  412,  414,  418,  431,  436,  438,  490,  493,  498,  503,  545,  705 

Smithson  v.  United  States  Telegraph  Co 32,  252,  297 

Society  Anonyme,  etc.,  v.  Old  Jordan  Mln.,  etc.,  Co.  690 

Soles  V.  Hickman   674 

Solon  V.  Chicago,  etc.,  R.  Co 436 

So.  Relle.  v.  West.  U.  Tel.  Co 473,  549.  554,  557 

Soumet  V.  National,  etc 394 

South  Carolina,  etc.,  R.  Co.  v.  American  Tel.  Co 145 

South  Covington,  etc.,  R.  Co.  v.  Berry  87 

Southeastern  R.  Co.  v.  European,  etc..  Electric  Printing  Tel.  Co.  140 

Southern  Bell  Tel.  Co.  v.  D'Alenberte   208 

V.  Francis   90,  113,  121,  122,  221 

V.  Lynch    186 

V.  McTyer   175,  176,  177,  182,  184,  186 

V.  Richmond    71,     79 

Southern,  etc.,  Co.  v.  Henlein  697 

Southern,  etc.,  Co.  v.  Howell    644 


TABLE    OF    CASES    CITED.  /OO 

[References  a^e  to  piige  iiuinberH.] 

V.  Kendrick    577 

V.  Newby    343 

V.  Orton    49 

V.  Rice    587 

V.  Southern   T.   Co 13C,    137.  140 

V.  Womack  345 

Southern  Exp.  Co    v.  Caldwell    30,    40 

V.  Caperton  372 

V.  Colwell    372 

V.  McVeigh    458,  475 

V.  Moon   370 

Southern  Kan.  R.  Co.  v.  Rice   569 

Southern  Light,  etc.,  Co.  v.  Board  of  Alderman   169 

Southern  Pac.  R.  Co.  v.  Rud 93 

Southern  Pac.  R.  Co.  v.  Southern  Cal.  R.  Co 143,  146 

Southwestern  Tel.  Co.  v.  Chicago,  etc.,  R.  Co 68 

V.  Dale    254,  256 

V.  Getcher 307,  518 

■  V.  Gulf,  etc.,  R.  Co 8,  143,  162 

V.  Ingrands   175,  178 

V.  Kansas   City,  etc.,  R.   Co 144,  162 

V.  Priest 194 

V.  Robinson   174,  178,  182,  184,  186,  188 

V.  Southern,  etc.,  T.   Co 68,  78,  140 

V.  Taylor 256,  307,  434,  442 

Southwork  Nat.  Bank  v.  Smith   663 

Spails  V.  Poundstone -117 

Sparkman  v.  West.  U.  Tel.  Co 515,  558 

Spellman  v.  Richman   578 

Spellman  v.  Richmond,  etc.,  R.  Co 579 

Spokane  v.  Colley 102 

Spokane  Trunk  &  Dray  Co.  v.  Hoefer  579 

Sprague  v.  West.  U.  Tel.  Co 494,  497,  504.  514 

Spring  Valley  Water  Works  v.  Schottles  22 

Spurlock  V.  Missouri  Pac.  R.  Co 481 

Squire  v.  West.  U.  Tel.  Co 354,  442.  496,  498.  525.  526.  692 

Stafford  v.  West.  U.  Tel.  Co 505 

Stamey  v.  West.  U.  Tel.  Co 40,  263.  326,  390.  393,  397.  398 


756  TABLE    OF    CASES    CITED. 

[References  are  to  page  unmbers.] 

Standard  Oil  Co.  v.  Tierney 590 

Standard,  etc.,  Co.  v.  White  Lim.,  etc.,  Co 354 

Stansell  v.  West.  U.  Tel.  Co 545,  552,  567 

State  V.  American,  etc..  Commercial  News  Co 226 

V.  Archer   598 

V.  Atchison  R.  Co 53 

V.  Bell  Tel.   Co 15,   41,  236 

V.  Boston,  etc.,  R.  Co 148 

— V.  Cassidy 632 

V.  Central  New  Jersey  Tel.  Co 14,  154,  621 

V.  Choven   325 

V.  Citizens  Tel.  Co 33,  34,  35,  232,  235,  236,  243,  246,  469 

V.  Consolidated  Coal  Co 50 

V.  Cumberland,  etc.,  Tel.  Co 71,  73,     74 

V.  East  Cleveland   R.  Co 47 

V.  Espouzie   649 

V.  Flad    71 .     79 

V.  Fa-ench 208 

V.  Harbourna   626 

V.  Hayworth   622 

V.  Herod  632 

V.  Holmes    663 

V.  Hopkins    658 

V.  Jolly ' 648 

V.  Kinloch  Tel.  Co 243,  246 

V.  Loverack    93,  103 

V.  Litchfield   679 

V.  Maine  Cen.  R.  Co 187 

V.  Mayor,  etc.,  of  Mobile 93 

V.  McCrystol   598 

V.  Nebraska  Tel.  Co 232,  235,  236,  237,  243,  469 

V.  Overton   323,  324 

V.  Patterson   582 

V.  Real  Estate  Bank   46 

V.  Scott   149 

V.  Sheboygan   73,  169,  171,  224 

V.  Sherman 148 

V.  Spokane   "^l-    '^^ 


TABLE    OF    CASES    CITED.  "57 


[Referenci'8  are  to  page  nuiuberB.] 

V.  Standard  Oil  Co 51 

V.  St.  Louis,  etc.,  R.  Co 98 

V.  Tel.  Co 218 

V.  Walsh 598 

V.  Western  Irrigating  Canal  Co 47 

State  Bank  v.  West.  U.  Tel.  Co 429 

Steamship  Co.  v.  Joliffe 204 

Steele  v.  Epsom l'*^ 

V.  McTyre    344 

V.  Lowensend    ^^^ 

V.  Townsend ^^^ 

Stein  V.  Burden   593 

Sterne  v.  Metropolitan  Tel.,  etc.,  Co 247 

Stevenson  v.  McLean   687,  692 

V.  Montreal  Tel.  Co 334,  432,  498 

Stewart  v.  Clark  ^^0 

Stiles  V.  West.   U.   Tel.   Co 354,  545 

St.  J.  &  D.  C.  R.  Co.  V.  Dryden   1-37 

St.  Louis  V.  Bell  Telephone  Co 7,  14,  22,  76,  96.  213,  224 

St.  Louis  V.  Herthel 219 

St.  Louis  V.  McLaughlin   219 

St.  Louis  V.  West.  U.  Tel.  Co. 

62,  63,  65,  78,  80,  81,  82,  83,  84,  169,  222,  223,  637,  640 

St.  Louis  Cons.  Coal  Co.  v.  Haenni 577 

St.  Louis,  etc.,  R.  Co.  v.  Hannibal,  D.  Co 142 

V.  Hardy    323 

V.  Hill   229,  231,  232 

V.  Knight   •^^'^ 

V.  Marrs   '^32 

V.  Mo.  Pac.  R.  Co -1^5 

V.  Postal  Tel.  Co 131,  133,  143,  144,  161,  162,  163 

V.  Southwestern  Tel.  Co 144,  146,  147,  148.  151 

V.  Weakley ^^^ 

V.  Worthey   ^^2 

Stockton  V.  Central  R.  Co 50 

Stone  V.  Justice  *^3 

Stork  V.  Railroad  Co 151 

Storm  V.  Green   ^^^ 

Stowers  v.  Postal  Tel.,  etc.,  Co 109.  123 


758  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.] 

St.  Paul  V.  Freedy  80 

Strahorn  H.  E.  C.  Co.  v.  West.  U.  Tel.  Co 310 

Strauss  v.  Miertief 538 

V.  Wabash,  etc.,  R.  Co 341 

V.  West.  U.  Tel.  Co 425 

Stuart  V.  West.  U.  Tel.  Co 550,  577,  579,  586,  591,  592 

St.  Vincent  O.  Asylum  v.  Troy 75 

Sub-Marine  Tel.  Co.  v.  Dickson  194 

Sullivan  v.  Kuykendall  665 

Summerfield  v.  West.  U.  Tel.  Co 568 

Summit  T.  P.  v.  New  York,  etc.,  Tel.  Co 220 

Sunset  Tel.  Co.  v.  Medford   169 

Susquehana  Canal  Co.  v.  Bonham   9,     51 

Sutton  V.  W^anwatosa   424 

Swain  v.  West.  U.  Tel.  Co 380 

Swan  V.  Williams 125 

Sweet  V.  Postal  Tel.,  etc.,  Co 331,  334 

Sweetland  v.  Illinois  Tel.  Co. 

30,  297,  315,  354,  362,  367,  369,  387,  393,  397,  480 

T. 

Taggart  v.  Interstate  Tel.  Co 7 

Taggart  v.  Newport  St.  R.  Co 137 

Talkington  v.  Parish 486 

Taliferro  v.  West.  U.  Tel.  Co 551 

Taylor  v.  Bradley  538,  593 

V.  Carondelet   218 

V.  Henriker   114,  115 

V.  Maine  Cent.  R.  Co 435 

V.  Merchant's  Fire  Ins.  Co 692,  696 

V.  Secor 628 

V.  Steamboat  Robert  Campbell    648,  687,  697 

V.  West.  U.  Tel.  Co 598,  600 

Taylor,  etc.,  R.  Co.  v.  Taylor 190 

Telephone  Company  v.  Brown  282,  283,  254,  GOO 

V.  Crider   


333 


—  V.  Texas 


636 


Telegraph  Co.  v.  Griswold 40,  322 


TABLE    OF   CASES    CITED.  759 

[References  are  to  page  numbers.] 

V.  Telephone,  etc.,  Co 244,  245 

Tennessee  West.  U.  Tel.  Co.  v.  Mellon  591 

Tentin  v.  Hurley ^^^ 

Terre  Haute,  etc.,  R.  Co.  v.  Clem 188 

V.  Rodel   11^ 

V.  Stockwell   ^^^ 

Tessat  v.  Great  Southern  Bell  Tel.  Co 120,  121 

Tex.,  etc.,  R.  Co.  v.  Adams 323,  440 

Texas,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co 162 

Texas  Midland  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co 162 

Texas  Tel.  Co.  v.  Seiders 324,  339 

Thomas  v.  Railroad  Co 50,  51,  53,     54 

■  V.  Wabash,  etc.,  R.  Co 354 

V.  Western  Jersey  R.  Co 52 

.  V.  West.   U.   Tel.   Co 1'74,  574 

V.  Winchester  ^^^ 

Thomas  L.  &  T.  Co.  v.  Seville 686 

Thomas  Mfg.  Co.  v.  Prather  452 

Thompson  v.  New  Orleans 593 


V.  Pac.  R.  Co. 


621 


V.  Waters   1'*^ 

V.  West.  U.  Tel.  Co. 

275,  279,  355,  363,  369,  421,  448,  471,  511,  534,  594,  598 

Thorne  v.  Barwick ^^'^ 

Thorp  V.  Philbin ^^3 

V.  West.  U.  Tel.  Co 281 

Thurlo  V.  Massachusetts   636 

Thurn  v.  Alta  Tel.  Co 597 

Tietsam  v.  Hay ^^ 

Tiffany  v.  U.  S.  Illuminating  Co 1'^.  102 

Tinsman  v.  Belvidere  Dec.  R.  Co 1-5 

Tippecanoe  County  v.  Lafayette,  etc.,  R.  Co 51 

Tissot  V.  Great  Southern  Telegraph,  etc.,  Co 124 

Tobin  V.  Shaw  548,  655 

V.  W.est.  U.  Tel.  Co 308,  370,  399,  457.  564 

Toledo  V.  West.  U.  Tel.  Co 2,  60,  63,    70 

Toledo,  etc.,  R.  Co.  v.  Dunlap l'*^ 

V.  Patterson    ^^^ 


760  TABLE    OF    CASES    CITED. 

[References  are  to  iiage  numbers.] 

Toll  Bridge  Co.  v.  Hartford,  etc.,  R.  Co 142 

Tomblin  v.  Calen   414 

Tompkins  v.  Little  Rock,  etc.,  R.  Co 624 

Tompkinson  v.  Cartlidge  663 

Toonej^  v.  Brighton,  etc.,  R.  Co 186 

Townsend  v.  Rockman  452 

Treadmill  v.  Salisbury  Mfg.  Co 51,     53 

Trester  v.  Missouri  Pac.  R.  Co 149 

Trevor  v.  Wood 466,  672,  687,  692,  697 

Troett  V.  Decker 422 

Troy  and  Boston  R.  Co.  v.  Boston  Hoosac  Tunnel,  etc.,  R.  Co.     50 
Troy,  etc.,  R.  Co.  v.  Kerr   50 

True  V.  International  Tel.  Co. 

26,  306,  319,  320,  321,  322,  369,  384,  496,  511,  526,  687,  692 

Tufts  V.  Plymouth  Gold  M.  Co 538 

Turn  V.  Alta  Tel.  Co 611 

Turner  v.  Hawkeye  Tel.  Co 299,  411,  434,  479,  496,  526,  533 

Turnpike  Co.  v.  News  Co 125 

V.  Railroad  Co 10 

Tweddle  v.  Atkinson   451 

Twelfth  Market  St.  Co.  v.  Philadelphia,  etc.,  R.  Co 142,  145 

Tyler  v.  Todd 188 

Tyler  v.  West.  U.  Tel.  Co. 

27,  30,  33,  35,   39,   298,  299,   306,  320,   354,   362,  364, 

367,  369,  395,  479,  494,  495,  510,  552,  567,  568 

U. 

Uline  V.  New  York  Cent,  etc.,  R.  Co 538 

Union  Elec.  Tel.  etc.,  Co.  v.  Applequist   102 

Union  Nat.  Bank  v.  Mills 694 

Union  Pacific  R.  Co.  v.  Colorado  157 

V.  Colorado  Postal  T.  Co....  131,  132,  144,  147,  149,  151,  157 

V.  Colorado  R.  Co 161 

V.  Pendleton   621 

Union  Trust  Co.  v.  Atchison,  etc.,  R.  Co 144,  164 

United  Electric  R.  Co.  v.  Shelton  175 

United  States  v.   Babcock    644,    660,   681,  682 

V.  Colt 11 

V.  Hartwell 598 


TABLE   OF   CASES   CITED.  761 

[References  are  to  page  numbers.] 

V.  Northern   Pacific  R.   Co 50.  71,  204,  205,  444 

V.  Pacific  Rd.  Co ^^ 

V.  Palmer   ^^^ 

V.  Union  Pacific  Rd.  Co 11,  50,  71,  204,  205 

V.  West.  U.  Tel.  Co 50,  52.  204,  205 

V.  Wiltberger    ^^^ 

United  States  Ex.  Co.  v.  Blackman 370 

441 

V.  Harris  

United  States  Tel.  Co.  v.  Gildersleeve.  .36,  299,  356,  404,  449,  456,  506 

V.  Lyman   

V.  Wenger    306.  318,  479,   483,   494,   511,  526 

V.  Western  U.  Tel.  Co 437.  463,  611 

Utica  V.  Utica  Tel.  Co ^^^ 

Utley  V.  Donaldson  ^^'^'  ^^^ 

V. 

VanBachen  v.  People   ^^^ 

Vanderkar  v.  Rensselaer,  etc.,  R.  Co 618 

Vanderlip  v.  Grand  Rapids   ^44 

Van  Dyck  v.  McQuad ^^^ 

Van  Toll  v.  Southeastern  R.  Co.   32 

Vassarv.  Camp ^^5.  692 

Vermont,  etc.,  R.  Co.  v.  Fitchburg  R.  Co 444 

187 
Vicksburg  v.  Hennessey 

75 
V.  Marshall   

fiOA 

Vicksburg  Bank  v.  Worrell 

Victorian  R.  Co.  v.  Coultas,  L.  R.    ^"^3 

Victory  Printing  Co.  v.  Bucher   ^^'^ 

452 
Vrooman  v.  Turner  

W. 

W.  &  N.  O.  Tel.  Co.  V.  Hobson 306 

Wabash  ,  etc.,  R.  Co.  v.  Brown   356 

V.  Illinois    ^^^ 

Wadsworth  v.  West.  U.  Tel.  Co. 

258,   418,    453,    454,    457,    459.    460,    463,    552,    554,    557,    571,  5(0 
Wald  V.  Kansas  City,  etc.,  Co 486 

Walden  v.  West.  U.  Tel.  Co ^26 

590 
Walker  v.  Erie  R.  Co 

32 
V.  York.  etc..  R.  Co 


762  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Wallace  v.  Clayton   341 

Wallingford  v.  Columbia,  etc.,  R.  Co 343 

V.     West.  U.  Tel.  Co 313,  542 

Walser  v.  West.  U.  Tel.  Co 541 

Wane  v.  West.  U.  Tel.  Co 30 

W^ann  v.  West.  U.  Tel.  Co 356 

Ward  V.  Atlantic,  etc.,  Tel.  Co 175,  176,  178,  186 

V.  Hohn 650 

V.  Ward   577 

Warmell   v.   Maine,   etc.,   R.   Co 193 

Warner  v.  Railroad  Co 192 

Warren  v.  First  Div.  St.  Paul,  etc.,  R.  Co 125 

Washington,  etc.,  Tel.  Co.  v.  Hobson  30,  306,  473,  528 

Waterloo  v.  Union  Mill  Co 75 

Watermann  v.  Banks    695 

Waters   v.   Greenleaf — Johnson   Lumber   Co 585 

Watkins  v.  St.  Louis,  etc.,  R.  Co .* 436 

Watson   V.   Baker    672 

V.  Montreal  Tel.   Co 453 

watts  V.  Southern  Bell  Tel.,  etc.,  Co 175 

V.  Weston 593 

Weatherford,  etc.,  R.  Co.  v.  Seals   433,  439 

Weaver  v.  Burr   , 694 

V.     Grand  Rapids,  etc.,  R.  Co 606,  607 

Webb  V.  Dunapolis 75 

Webbe  v.  West.  U.  Tel.  Co 395,  400,  402,  457,  484 

Wehner  v.  Loyerfelt   175 

Weiden  v.   Brush  Electric  Light   Co 193 

Weir  V.  Hoss 418 

V.  St.  Paul,  etc.,  R.  Co 125 

Welsh  V.  Wadsworth   618 

Wells  V.  Milwaukee,  etc.,  R.  Co 687 

Wertz   V.  West.   U.   Tel.   Co 363,  369 

West  V.  West.  XJ.  Tel.  Co 453,  455,  567,  569,  573,  587 

West   Orange   v.   Field    92 

West  R.  B.  Co.  V.  Dix   166 

Western,  etc.,  R.  Co.  v.  Exposition  C.  Mills   361 

V.  Harwell  442 


TABLE   OF   CASES    CITED.  763 

[Refcreuces  are  to  page  nutuberB.] 

Western  U.  Tel.  Co.  v.  Adair   308,  551 

V.  Adams 271,  272,  282,  354,  355,  362,  455,  456,  462 

476,  493,  516,  517,  563,  607,  609 

V.  Allen    21,  453,  456,  461,  463,  493,  600,  609 

V.  American  U.  Tel.  Co 68,  69,  136,  140,  144,  164 

V.  Andrews    560 

V.  Ann  Arbor  R.  Co 68,  70,  133,  135 

V.  Arwine ^^^ 

V.  Atlantic,  .etc.,  T.  Co 61,  63,  69,  140,  164 

V.  Attorney  General    62,   63,  627,  628,  640 

V.  Ayers    ^"^ 

V.  Axtell    476,  597,  607,  614 

V.  Bailey   544,  545,  663 

V.  Baltimore,  etc.,  R.  Co 53 

V.  Baltimore,   etc.,   Tel.   Co 69,  164 

V.  Bass 55^ 

V.  Bates    6^3,  654 

y    Beals   271,  308,  353,  363,  464,  544,  698 

V.  Bell    531,  556 

V.  Bennett ^l^-  ^80 

0 


-  V.  Beringer    453,461,55 


V.  Bordine 


591 
306 


-  V.  Birdue »• 

-  V.  Bierhaus   281,  387 

-  V.  Birge-Forbes  Co 260,  267,  387 

-  V.  Blake    ^"^^^ 

-  V.  Blanchard....21,   39,  32,  251,  252,  262,  268,  306,  354, 

357,   362,   363,   369,  381,   388,   506,  510 

-  V.  Blause    653,654 

-  V.  Boessche    

-  V.  Bonichell   299 

-V.  Boots   266.  299,300 

-  V.  Bowen   ^^"^ 

-  V.  Brightwell    ^^" 

-V.Briscoe    305,567 

-  V.  Broesche..227,  265,   273.  332.   335,  355.  448,   515,  516,  592 

-  V   Brown.  .372,  446,  463.  479.  522.  526.  550.  577.  586,  606,  618 

-v.Bruner   274,  335,386 

-v.Brvant 506,567 


764  TABLE    OF   CASES    CITED. 

[References  are  to  page  numbers.] 

V.  Bryson    306,    333,  334 

V.  Buchanan.. 26,  32,  39,  292,  320,  355,  356,  360,  362,  608,  617 

V.  Billiard    194 

V.  Burlington,  etc.,   R.   Co 69 

V.  Burns    527 

V.  Burrow    363,  519 

V.  Cain    288,  306,  307,   567,  592 

V.  Call  Pub.  Co 226,  229,  230,  231,  233,  234,  644 

V.  Carew 30,    40,    356,    393,    431,432 

V.  Carter   434,  512,  516,  518,  550,  560,  562,  600,  601 

V.  Carver    526 

V.  Cavin    336 

V.  Chamblee    289,  305,   307,   362,  464 

V.  Champion  E.   L.   Co 201 

V.  Chicago,   etc.,  R.   Co 69,  167 

V.  Church   490,  491,  513,  590 

V.  Circle 265,  266,  298,  301 

V.  Clark    39,  266,  614 

V.  Clifton  539 

V.  Clime    567,  654 

V.  Cobbs    277,  355,  371,  374,  609,  616 

V.  Coffin 455,   517,  565 

V.  Coggin   506 

V.Cohen    267,387 

V.Collins    317,483,522,533,656 

V.  Commonwealth   63,  637 

V.Cook 249,540 

V.  Cooper.. 22,  254,  266,  268,  271,  290,  291,  299,  318,  383, 

389,  462,  482,  483,  484,  550,  557,  560,   574,   590,  649,  657 

V.  Cornwell    503,  543 

V.  Crall    299,    300,    359,    478,    480,    498,502 

V.  Crawford    305,   362,  383,  532 

V.  Crider 333,  334,  551 

V.  Crocker 592,  551,  564,  565 

V.Cross    285,584 

V.  Crumpton    551 

V.  Cunningham.  .264,  265,  330,  372,  380,  398,  551,  587.  588,  592 

V.  Davis    274,   287,   288,  306 


TABLE   OF   CASES   CITED.  765 

[Eeferences  ure  to  page  numbers.] 


v.DeJarles    274.283 

591 

372 


V.  Douchell    ^^^ 


—  V.  Dougherty   

260 

—  V.  Downs    

-v.Dozier    261,   324,605 

—  V.  Drake   285 

—  V    Dubois.. 41.  264,  268,  271,  399,  453.  456,  478,  493,  495. 

529,   532,  698 

-v.Dunfield    371,372 

—  V.  Eakridge    ^^^ 

-v.  Edmondson 490,557,558 

_  ^r    Edsall  30,  271,  304,  393,  407,  465,  514,  697 

278 

—  V.  Elliott "'° 

—  V.  Erwin    ^'^^ 

-v.  Evans    518.591.592 

_  V.  Eubanks    40,  353,  362,  375,  376.  388.  523 

-v.Eyser    1^^'   ^^''  ^^^ 

_v.  Fatman    289,506,540,653,654 

„       ,^,  461,  516 

—  V.  Feagles   

—  V.  Fellner   ^26 

—  V.  Fenton 

354,  362,  369,  399,  456,  457,  459,  460,  463,  493,  495,  536 

—  V.  Ferguson 

42.  264,   325,  415,  476,   567,   602,  606,   607,  609.  617 

^.  .  '         '  551,  592 

—  V.  Fisher    

_v    Flint   River   Lumber   Co 271.    464.    532.698 

-V.Fontaine    26,32.252.357.479 

^     ,  304.  324 

—  V.  Foster    

.  78.  632 

—  V.  Freemont   

_v    Frith    316,    552.    587,592 

518 

V.  Garrett 

V    Georgia  Cotton   Co 331,335 

331.  333.  335 

V.  Gibson   

544 

V.  Gidcumb 

^      ,,  299,   354.  359.  479 

V.  Goodbar    

271,  272.  289.  290,  608 

V.  Gougar   ^'   ' 

—  V    Graham  297.  354,  355,  362.  369.  387,  494,  498.  502.  525.  526 

^   .^  423,   477,   593 

- —  V.  Griffin    

518 

V.  Grigsley 


766  TABLE    OF   CASES   CITED. 


[References  are  to  page  numbers.] 

V.  Griswold    30,  298,  299,  321,  355,  369,  506 

V.  Guest   592 

V.  Hale 566 

V.  Hall    414,   498,    501,    506,  524 

V.  Haltom 567 

V.  Hamilton   419 

V.  Harding   267,  331,  332,  334,  421,  612 

V.  Hargrove   288 

V.  Harper   299,  309,  414 

V.  Harris   362,  369,  385,  494,   510,  525 

■  V.  Hart    305 

V.  Hayes 382,  408 

V.  Hearue    ....36,542 

V.  Henderson... 237,  265,  272,  274,  284,  285,  313,  317,  328, 

371,  383,  393,  407,  476,  482,  551,  553,  562,  649 

V.  Hendricks   281,  560 

V.  Henley    490 

V.  Hill   306,  336,  415,  592 

V.  Hinkle   398,405 

.  V.  Hines  299,  536,  543,  593,  655 

V.  Hobson 297 

V.Hoffman    306,462 

V.  Hopkins   463,  654,  655 

■  V.  Houghton    278,  484,  591 

•  V.  Housewright 305,  559 

•V.Howell    203,359,360,601,626 

■  V.  Hudson 227 

-  V.  Huff    610 

■  V.  Hurley 304 

-  V.  Hyde  Bros    274' 

■  V.  Hyer    30,   268,    388,  515 

-  V.  Irnman,  etc.,  Co 181 

-  V.  Jackson   278 

-  V.  James    209,  374,  397,  522,   593,  601,  602,  616 

-  V.  Jeans 306 

.  V.  Jobe 265,   376,   514,550 

-  V.  Johnson    307,   386,   551,  592 

-  V.  Jones   ..260,  262,  265,  318,  320,  371,  372,  373,  374,  453, 

455,  599,  605,  606,  615 


TABLE   OF   CASES    CITED.  767 

[References  are  to  page  numbers.] 

V.  Kansas  P.  R.  Co 52 

V   Karr   383,  506,  515,  587,  588,  592 

V.  Kemp 37,  376,  503,  526 

V.  Kendzora   543 

if) 
V.  Kenny '*  '" 

V.  Kilpatrick 4'^'^'  ^'J'^ 

V.Kinney    466,476,607 

V.  Kingsley 550,  592 

V.  Landis 370,  526 

V.  Lavender    307 

V.  Lawson    584,    587,   589,  594 

V.  Levi   174,  188 

V.  Lewelling ^^^ 

V.  Lovett 558 

V.  Liddell   262,  303,  605 

v.  Lieb 621 

v.  Lindley 271,290,291,522,609,613 

V.  Linn 40,  513,  550,  560 

V.  Linney 533 

V.  Littlejohn    414,   530,  531 

•  V.  Lively 503 

■  V.  Longwill    375,   453,   456,   497,  539 

•  V.  Lovely    440 

-  V.  Lowry    363,    369,  426 

-  v.  Luck    333,517,519,558 

-  V.  Lycan 400,  457 

-  V.  Lydon 306,  315,  316,  482,  562 

-  V.  Mansford    22 

-  V.  Martin 506 

-  V.  Massachusetts    207,    620,   621,   627,628 

-  V.  Matthews 285,  287,  305,  307,  551 

.  V.  May   515,  550,  560 

-  V.  McCall   589 

-  V.  McConnico    283.  334 

-  V.  Mccormick    610,542.507 

-  V.  McCoy 386 

-  V.  McDaniel   292,303,614 

-  V.  McGuire    329 


768  TABLE    OF    CASES    CITED. 


[References  are  to  page  uumbers.] 

V.  Mcllvoy 299,  433,  551,  566,  592 

V.  McKibben   291,  371,  374,  376,  399,  463,  536 

V.  McKinney    382 

V.  McLaurin    539,    607,  610 

V.  McLeod   565 

V.  McMillan    320,  518 

V.  McNair    485,551 

V.  Meek   26,  299,  301,  354,  362,  369,  463,  476,  479,  608 

V.  Mellon   70,  306,  383,  552,  600,  602 

V.  Meredith    354,   371,  374,  476,  598 

V.  Merrill   336 

V.  Meyer  426 

V.  Michelson    600 

V.  Mississippi  R.   Co 204 

V.  Mitchell    274,   275,  483 

V.  Moore    272,   273,   282,  285,   288,   289,   329,   484,  516 

V.  Morris   313,  587 

V.  Moseley 274,275 

■  V.  Moss    617 

•  V.  Mossier   476,617 

•V.Motley    518,560 

■  V.  Munford    439,  440,  493 

•  V.  Murray    380,  381,  490,  515 

-  V.  Nagle    , 363,515 

■  V.  Nations    516,  519,  550 

-  V.  Neel 282,   284,   297,   319,    331,   334,550 

-  V.  Neill 30,  308,  309,  355,  357,  359,  385,  398,  480 

-  V.  Newhouse    567,  592 

-  V.  New  York 61,  206 

-  V.  Norris 300,  363,  593 

-  V.  North  Packing,  etc.,  Co 305 

-  V.  Norton   505,  543 

-  V.  Nye,  etc..  Grain  Co.   522 

-  V.  Oden   299,566 

-  V.  O'Keefe    286,  550,  592 

-  V.  Pallotta    606 

-  V.  Parks   558 

-  V.  Parlin,  etc.,  Co 503 


TABLE    OF   CASES    CITED.  769 

[Kfferences  are  to  piige  numbers.] 

V.  Parsons    303,  560 

V.  Partlow   f>56 

V.  Patrick    303,613 

V.  Patton   3^3,  593 

V.  Pearce 275,  279,  281,  288,  334,  503,  504,  515 

V.  Pells   372 

V.  Pendleton    ..17,   28,  203,   207,   209,   210,  218,   419,  463, 

596,  598,  599,  601,  603,  609 

V.  Pennsylvania   ^36 

V.  Pennsylvania  R.  Co ''0.  "^4,  146 

V.  Perry   336 

V.  Philadelphia    77,207,220,222,632 

V.  Phillips   401,  407,439 

.v.Piner 383.  591 

•  V.  Poe   ^22 

-  V.  Porter   565,  592 

-v.  Powell    407,615 

-  V.  Power ^^"^ 

-  V.  Proctor    408,  543,  566 

-  V.  Pruett    390 

-v.Ragland   300,  363,  506 

-  V.  Railroad  Com.    211 

-V.Rains    371,   372,380 


Randall 


565 


—  V.  Randies    ^^^ 

—  v.  Ratterman ^36 

-v.Rawls    302,    333.336 

—  V.  Redinger   282,285 

-v.  Reed    305,600 

_v.Reid    528 

_v.  Reeves 300 

—  V.  Reynolds  29,  31,  258,  278,  321,  371,  388,  418,  456,  506 

—  V.   Rice    593 

—  V.Rich    137,  138,139 

V.  Richman 468.  532 

—  V.Richmond 138.369,418 

—  V.  Roberts 476,597 

_v.  Robinson 288,537,552,592 

T.   &   T.— 49. 


770  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

V.Rogers    548,    549,    568,    569,584 

V.  Rosentreter    336,   516,   550,  591,  592 

V.  Roiindtree    267,270,271 

V.  Russell    ' 262,  289,  290,  518,  592 

V.  Ryels    617 

V.  Scircle 299,  375,  606,  607,  610 

V.  Seals    387,433 

V.  Seay 636 

V.  Seed   587 

. V.  Seffel    266,551 

V.  Sheffield 511,  544 

V.  Short   39,  40,  299,  354,  362,  369,  478,  504 

V.  Shotter    ,....494,    688,    697,700 

V.Shumate    408,    433,   542,    522,557 

V.  Simms   432,  433 

V.  Simpson 310,  360,  550 

V.  Sklar 552,  567 

V.Smith    299,    441,    498,    505,    515,    517,    551,559 

V.  Sneed 592 

V.  Snodgrass 330 

V.  Sorsby   306,  433 

V.  State    1''6,   182,   184,   628,  640 

V.  State  Board 637 

V.  Steele    606 

V.  Sternbergen 333,  551 

V.  Stevens  528,  530,  533,  557 

V.  Stevenson    ....    271,  318,  338,  356,  395,  405,  406,  410,  650 

V.  Stiles    387,  563 

V.  St.  Joseph,   etc.,   R.   Co 52 

V.  Stone  560 

V.  Stratemeier   378,  441,  592 

V.  Swain  606 

V.  Swearinger 287 

V.  Sweetman   288,  550,  563 

V.  Taggart   627 

V.  Taylor   617 

V.  Teague   288 


TABLE    CF   CASES    CITED.  771 

[Referenopp  <tve  to  page  numbprs  1 

V.  Terrell    278,  306,  382,  564 

V.  Texas   600,  G20,  626,  627,  636,  637 

V.  Thomas    269,  526 

V.  Thompson    278,  564,  565,  592 

V.  Thorn    1^^ 


V.  Tobin 


363 


V.  Todd 338,  362,  515,  567 

V.  Toledo    84,  703 

V.  Tracey    1^^ 

V.  Trice   ^^^ 

•  V.  Trissal   276,  607 

■  V.  Trotter   285 

•  V.  Trumbull   376 

•  V.  Turner ^^^ 

-  V.  Tyler   27,  33,  35,  354,  362,  364,  369,  517,  626 

-  V.  Union    Pac.    R.    Co 52 

-  V.  Uvalde  National  Bank   10'' 

-  V.  Valentine   494,  495,  536 

-  V.  Van  Cleave 237,  331,  333,  386,  551 

-  V.  Virginia  Paper  Co 283 

-  V.  Waller   563,  574 

-  V.  Ward 42,   285,  299,  306,  479,  552,  605,  608 

-  V.  Warren    550,    557 

-  V.  Watson    568,    587 

-  V.  Waxelbaum  397,  404 

-  V.  Way 

305,  314,  371,  372,  376,  388,  438,  482,  503,  506,  525,  577,  586,  693 

-  V.  Wenger    ^^^ 

-  V.  West.,  etc.,  R.  Co. 138 

-  V.  Williford    514,   522,  655 

-  V.  Williams    . .    71,    102,    104,    106,    107,    108,    113,    116,  123 

-  V.  Wilson 

273,  274,  301,  324,  423,  455,  473,  475,  506,  513,  551.  553,  605 

-  V.  Wingate   .  .' 331,  336.  557 

-  V.  Wisdom    ^^'^ 

-  V.  Wofford     °*^ 


V.  Womack 


288,    515 


W 


oods 275,317,533,  567 


I  l2  TABLE    OF    CASES    CITED. 

[References  are  to  page  nuiiibcrs.] 

y.  Wyatt  217 

V.  Yopst 339,  371,  372,  374,  376,  381,  382,  422,  477,  615 

V.  Young   264,  278,  356,  660 

V.  Zane 592 

Wetmore  v.  Mell 561 

Whaley  v.  Hinchmau   687 

Wheat  V.  Cross   692,  696 

Whilden  v.   Merchants',  etc.,  Nat.   Bank    655 

Whiley  v.  Duncan  671 

Whipple  V.  Cumberland  Mfg.  Co 589 

White  V.   Ashton    436 

V.  Phelps  32 

V.  Sanborn  466 

V.  West.  U.  Tel.  Co 269,  356,  359,  387 

Whiteside  v.  Hunt 414 

Whiting  V.  St.  Louis,   etc.,  R.  Co 392 

■  V.  West  Point 87 

Whittaker  v.  Brooks    623 

Whittemore  v.  West.  U.  Tel.  Co 285,  288 

Wilcock  V.  Richman,  etc.,  R.  Co 567 

Wilcox  V.  Moon  417 

Wild  V.  Orleans    593 

Wilkins  v.  West.  U.  Tel.  Co 476,  598,  599,  606,  609 

Will  V.  Postal  Tel.  Cable  Co 391 

Williams  v.  Brickill 655,  657 

V.  Brown    593 

V.  Citizen's  R.   Co 84 

V.  Criswell 148 

■  V.  Erie  Tel.  Co 98 

V.  (jrrant    344 

•  V.  Guile 485 

V.  N.  Y.  Central  R.  Co 93 

V.  Printer's   Ins.    Co 585 

V.  Robinson    674 

■  V.  St.  Louis  75 

Willock  V.  Pennsylvania  R.   Co 354 

Wilson  V.  Beyers  8'^ 

V.  Brett .     358 


TABLE    OF    CASES    CITED.  773 

[Kefi-reuces  are  to  page   numbers.  1 

V.  Great  Southern  Tel.,  etc.,  Co 19,  174,  180 

•V.Minneapolis,    etc.,    R.    Co 653,    697 

V.  Richmond,  etc.,  R.  Co 552 

V.  Weber 621 

Winch  V.  Birkenhead,  etc.,  R.  Co 50 

Winchester  v.  Capron ^-^ 

Winfield  v.  Dody •*21 

Winona,  etc.,  R.  Co.  v.  Blake   22 

Winter  v.  New  York  Tel.  Co 102,  124 

Wirtz  V.  West.  U.   Tel.   Co 355 

Wisconsin  Cent.  R.  v.  Taylor  Co 621 

Wisconsin  Tel.  Co.  v.  Oshkosh  3,  7,  11,  15,  222 

Wolf  V.  American,  etc.,  Co 343 

V.  Missouri  Pac.   R.   Co 665 

V.  West.  U.  Tel.  Co 371,  372,  373.  393,  396 

Wolfe  V.  Erie  Tel.,  etc.,  Co 174,  180 

Wolsey  V.  Railroad  Co 323 

Wolfskehl  V.  West.  U.  Tel.  Co 453,  461,  537,  542 

Woraack  v.  West.  U.  Tel.  Co 331,  355,  357,  393,  480 

Wonder  v.  Baltimore,  etc.,  R.  Co 15^3 

Woodman  v.  Hubbard  '*21 

Woods  V.  Boston 1^^ 

V.  Kennedy •  •   •  •  •   ^^^ 

V.  Miller   ^^'^ 

•  V.  State •  •    ^^^ 

V.  West.  U.  Tel.  Co 617 

Wooley  V.  Grand  St.,  etc.,  R.  Co 188.  189 

Worcester  v.  Great  Falls  Mfg.  Co 186 

V.  Western  R.  Corp 52 

Worth  V.  Edmonds  ^38 

V.  Whittington    ^22 

V.  Wilmington,  etc.,  Co 621 

Wright  V.  Donnell  

V.  Weeks  ^'^^ 


Wvatt  V.  Central  Tel.  Co. 19'    20 

441 

567 


Wvman  v.  Chicago,  etc.,  R.  Co '*'*1 


V.  Leavitt 


77-4  TABLE    OF    CASES    CITED. 

[References  are  to  page  numbers.] 

Wynne  v.  Atlantic  Ave.   R.  Co 589 

Wyse  V.  Dandridge .• 696 

Y. 

Yates  V.  Warrentown 7:) 

Yavapie  County  v.  O'Niel  655,  674 

Yazoo,  etc.,  R.  Co,  v.  Foster  505 

Yeiser  v.  Gathers    655 

Yolo  V.  Barmy 75 

York  Tel.  Co.  v.  Kessey  15 

Young  V.  Harris    690 

V.  Seattle  Transfer  Co 663,  661 

•  V.  West  U.  Tel.  Co. 

371,  372,  382,  393.  418,  448,  453,  454,  462,  493,  551,  587 

Z, 

Zanesville  v.  Zanesville  Tel.,  etc.,  Co 78,     81 

Zang  V.  Wyatt   650 

Zemp  V.  Wilmington,  etc.,  R.  Co 312 

Zimmer  v.  State 48 

Zimmerman  v.  Bonzar   577 


INDEX. 


I  Keferences   are   to   tbe  section   numbers.] 

A. 

ABANDONMENT— 

of  property,  no  defense  by  company  for  injuries  done,  186. 
injuries   from  abandoned   wires,   186. 

ABUSIVE  LANGUAGE— 

over  telephones,  250. 
ABUTTING  OWNER— 

rights  of,  in  city  streets  and  highways  discussed,  110. 

ACCEPTANCE— 

of  message,  when  and  where,  407. 
of  contract,  must  be  made  in  due  time,  735. 
offer  by  telegraph  requiring  actual  receipt  of,  in  case  of  con- 
tract 733. 

ACCORD  AND  SATISFACTION— 

as  defense,  in  action  to  recover  penalty  imposed  by     statute, 
642. 

ACT  OF  CONGRESS— 

granting  telegraphs  right  of  way,  15. 

granting  right  of  way,  56. 

no  exclusive  right  of  way,  68. 

does  not  apply,  to  installation  of  district  telegraph  system,  71. 

does  not  embrace  telephone  company,  71. 

right  of  way  under,  142. 

prohibits  grant  of  exclusive  right,  177. 

ACT  OF  GOD— 

company  not  liable  for,  355. 
contract  to  be  liable  for,  356. 
burden  of  proof,  357. 

ACTION— 

against  companies,  13. 

commencement  of,  as  notice  of  claim  against  company,  397,  398. 

of  addressee  of  message,  nature  of,  417,  418. 

for  breach^  on  interstate  message,  432. 

for  recovery  of  statutory  penalty,  433. 

on   extra — terminal   contracts,   454. 

(775) 


776  INDEX. 

[References  are  to  sections.] 
ACTION— Continued. 

action  against  initial  company  or  connecting. line,  466. 

for  damages  resulting  from  negligent  delays  in  transmission 
of  messages,   467-491. 

nature  of  action,  ex  contractu  or  ex  delicto,  468,  479. 

who  may  sue,  when  message  sent  by  agent,  principal  not  dis- 
closed, 469. 

right  of  addressee  to  sue  for  negligently  transmitting  or  de- 
livering message,  470-478. 

right  of  third  party  to  sue  on  contract  made  for  his  benefit, 
471-475. 

damages  in  actions  resulting  from  negligent  delays  in  trans- 
mission of  message,  480. 

under  statute,  resulting  from  negligent  delay  in  transmission 
or  delivery  of  messages,  482. 

effect  on  addressee's  right  of  action,  sender  paying  charges, 
484. 

right  of  action  of  third  party,  485. 

right  of  action  under  special  statutes,  486. 

addressee's  right  of,  when  message  not  repeated,  487. 

between  sender  and  addressee,  488. 

where  to  be  bought,  491. 

pleadings  in  actions,  492-513. 

character  of  actions  against  companies,  493. 

remedy  by  mandamus,  495. 

when  injunction  will  lie,  496. 

pleading  nature  of,  503. 

pleading  in,  for  statutory  penalty,  504. 

answer  in  action,  505. 

issues  in,  506. 

evidence  in,  509-510. 

instruction  to  jury  in,  512. 

withdrawing  case  from  jury,  513. 

measure  of  damages  in,  516-543. 

for  statutory  penalty,  does  not  bar  action  for  damages,  633. 

who  may  maintain  for  penalty  imposed  by  statute,  621. 

against   company   on   contract  as   agent,   744. 

for  mental   anguish  do  not  survive,   592. 

for  statutory  penalty  survives,  634. 

ADDRESS— 

of  message  must  be  definite,  316. 

AGENT— 

agency  of  telegraph  and  telephone  companies  considered,  4. 
company  liable  for  negligent  acts  of,  25. 


INDEX.  iti 

[Uc'fiTenCfs  are  to  sections.] 

AGENT — Continuetl. 

contract  of  agent  of  telephone  company  to  deliver  message  be- 
yond its  line,  261. 

delivery   of  message  to   authorized,   291. 

operator  writing  messages,  as  senders  agent,  317. 

liability  of  company  for  fraudulent  or  forged  messasrp  sent  by. 
442,  443. 

knowledge  of  agent  of  company,  424. 

liability  for  defaults  of  common,  462. 

message  sent  by,  principal   undisclosed,  who  may  sue,   469. 

sender  of  message  as  agent  of  addressee,  477. 

company  as  agent  of  addressee,  481. 

measure  of  damages,  delay  of  message  directing  agent  to  sell 
or  purchase,  553. 

malicious  acts  of,  as  act  of  corporation,  602. 

declarations  of,  as  evidence,  695. 

company  as  agent  of  sender,  under  statute  of  frauds,  705. 

telegraph  company  as  agent  of  sender  of  message,  738,  740. 

actions  against  company  on  contract  of  agency,  744. 

AGREEMENT— 

for  right  of  way,  129. 

necessity  of  effort  for,  in  condemnation   proceedings,   139. 

See  Contracts;   Sales. 

ALIENATION— 

of  franchise  of  company,  46,  47. 

ALTERED   MESSAGE— 

distinction  between  and  one  not  sent  or  delivered  as  to  action, 

494. 
effect  of,  on  contract  considered,  724-726. 

AMBIGUOUS  MESSAGE— 

acting  on  ambiguous  message,  323,  324. 
evidence  to  explain,  331. 

company  cannot  demand  that  it  be  informed  of  nature  and  pur- 
port of  message,  339. 
benefit  of  doubt  as  to,  429. 

AMENDMENT— 

of   pleading   in   action,   502. 

ANIMALS— 

frightened  by  abandoned  wires,  186. 


778  INDEX. 

[References  are  to  sections.] 

ANSWER— 

in  actions,  505. 

APPEAL— 

in  condemnation  proceedings  over  railroad  right  of  waj',  163. 

APPLIANCES— 

duty  of  company  to  furnish  suitable  to  employee,  200. 

ASSAULT  AND  BATTERY— 

liability  for  exemplary  damages,  in   action   for,   605. 

ASSESSMENT   AND   TAXATION— 
See  License  taxes;  Taxation. 

AUTHENTICITY— 

proof  of,  of  message,  674. 

AWARD— 

of   commissioners   in   condemnation   proceedings   over   railroad 
right  of  way,  166,  167,  168. 


BAILMENT— 

telegraph  and  telephone  company  not  ordinary  bailee  for  hire, 

259,  260. 
telegraph  companies  distinguished  from  bailees  for  hire,  27. 

BLANK— 

for  message,  distinguished  from  bill  of  lading,  380. 
proof  of  assent  to  stipulations  in,  411,  412. 
small  type  used  in,  414. 

messages  written  on  blanks  of  another  company,  421,  422. 
message   not  written  on,  action  for  penalty  imposed  by  stat- 
ute, 627. 

BONDS— 

measure  of  damages,  erroneous  message  for,  552. 

BRIDGES— 

lines  across,  78. 

BROKER— 

suit  by,  for  damages  resulting  from  negligent  delays  in  trans- 
mission of  message,  469. 
See  Sales. 


INDEX.  779 

[Ueferences  arc  to  sections.] 

BUCKET  SHOP— 

companies  cannot  be  compelled  to  furnish  facilities  to,  248. 
See  Futures. 

BURDEN  OF  PROOF— 

on  company  to  absolve  itself  from  negligence,  3C. 

in  negligence  cases,  196. 

in  action  for  injury  caused  by  delay  in  transmission  of  mes 

sage,  276. 
as  to  diligence  in  delivery  of  message,  302. 
as  to  negligence  on  failure  to  deliver  or  erroneous   transmis- 

mission  of  message,  311. 
shifting  of  burden  of  proof,  312. 
in  defense,  act  of  God,  357. 

defense,  that  loss  caused  by  mob  or  strike,  365. 
when   defense   is    stipulation   in   contract,    410. 
in  action  against  connecting  lines,  459. 
in  actions  generally,  507. 

BUSINESS— 

companies  must  have  sufficient  facilities,  237 

place  of,  of  foreign  corporation  within  state,  221. 

of  telegraph  and  telephone  companies  considered,  203. 

of  company,  taxation  of,  654. 

license  tax  on,  as  interstate  business,  invalid,  658. 

distinction  between  property  tax  and  privilege  tax,  659. 

BY-LAWS— 

of  company  distinguished  from  rules  and  regulations,  337. 

a 

CABLE— 

obstructing  navigation,  191. 

CANAL— 

lines  along  or  across,  76. 

CALLS— 

at  telephone  exchange,  attended  to  in  order  in  which  they  are 
made,   246. 

CAPITAL  STOCK— 

taxation  on,  in  proportion  to  length  of  line  in  state,  655. 

CARE— 

to  be  exercised  by  company  in  locating  constructing  and  main- 
taining line,  185. 


780  INDEX. 

[References  are  to  sections.] 

CARE — Continued. 

duty  of  company  to  exercise,  309. 
See  Due  Care;    Negligence. 

CHARGES— 

telephone  company  must  have  uniform  regulation  of  by  states, 
223,  224. 

telegraph  company  cannot  unjustly  discriminate  in,  239. 

reasonable  discrimination  in,  241. 

determination  of  reasonable,  242. 

discrimination  in  by  telephone  company,  247. 

necessity  of  pre-payment  of,  273. 

for  delivery  of  messages  outside  of  free  limits,  296,  297. 

non-payment  of,  when  no  defense  to  action  for  negligence,  313. 

rule  of  company  requiring  prepayment  of  charges  for  answer 
to  message,  335. 

rule  requiring  prepayment  of,  341. 

extra,  for  delivery  beyond  free  delivery  limit,  342. 

deposit  of,  for  answer  to  message,  343. 

company  may  waive  prepayment  of,  344. 

telephone  company  may  enforce  payment  of,  352. 

what  are  reasonable  regulations  of  telephone  company  con- 
cerning,  352. 

extra  for  repeating  messages  does  not  increase  duty  of  com- 
pany, 378. 

extra  fee  or  charges  over  connecting  line  selected  by  sender, 
465. 

acceptance  of  all  charges  does  not  change  rule  as  to  transmis- 
sion of  message  over  connecting  line,  448. 

sender  paying,  effect  on  adressee's  right  of  action,  484. 

necessity  of  prepayment  of,  in  action  to  recover  penalty  im- 
posed by  statute,   643. 

Sec  Rates. 

CHARTER 

and  franchise  distinguished,  43. 
alienation  of  franchise,  46-49. 

CIPHER  MESSAGE— 

stipulation  as  to,  405,  406. 

measure  of  damages  in  case  of,  531-533. 

liability  for  penalty  imposed  by  statute,  in  case  of,  626. 

CITIES— 

regulating  lines   in   streets,   power,   61. 
See    Municipal    Corporations. 


INDEX.  tS] 

[References  are  to  sections.] 

CLAIM— 

against  company,  stipulation  as  to  time  of  making,  385-390. 
waiver  of  written  claim,   394. 
when  limitation  of  time  begins  to  run,  390,  391. 
form  of,  requisites,  395. 
must  be  presented  to  proper  officer,  396. 
commencement  of  suit  on,  as  notice  of,  397,  398. 
effect  of  stipulation  as  to  time  of  presenting  in  action  to  re- 
cover penalty  imposed  by  statute,  641. 

COMMON  CARRIER  — 

telephone  company  as,  17. 

companies  are  not,  at  common  law,  22,  24. 

analogy  between  company  and  carrier  of  passenger,  25. 

telegraph  company  is  analogous  to,  25. 

telegraph  company  as  quasi  common  carrier  of  news,  28. 

when  declared  so  by  statute,  30. 

must  serve  all  alike,  38. 

telephone  company  not  at  common  law,  243. 

made  so  by  statute,  243. 

telephone  company  as,  254. 

telegraph  companies  as,  not  at  common  law,  236. 

telegraph  companies  made  so  by  statute,  236. 

regulation  of  charges  of,  225. 

discussion  of  status  of  telegraph  company,  258. 

and  telephone  company,  260. 

message  sent  in  care  of,  308. 

status  of  telegraph  company,  354. 

COMMON  LAW— 

duties  of  telegraph  company  under,  354-365. 
conflict  of  laws  in  cases  involving  contracts   exempting  com- 
pany from  common  law  liability,  374. 

COMMISSIONERS— 

in  condemnation  proceedings  over  railroad  right  of  way,  164. 

COMPENSATION— 

must  be  made  for  right  of  way,  78. 

to  abutting  lot  owners,  81. 

to  municipality  for  use  of  streets,  81. 

to  municipality  for  right  of  way,  85. 

of  adjoining  owner,  on  city  streets,  discussed.  97-100. 

to  abutting  owner,  when  fee  title  in  owner,  110. 

when  fee  title  in  public,  114. 

when  fee  title  in  third  party.  117. 

amount  of,  to  abutting  owner,  119. 


782  INDEX. 

[References  are  to  sections.] 

COMPENSATION— Continued. 

to  landowner  for  right  of  waj-  over  railroad  right  of  way,  145. 

to  railroad  companies  for  right  of  way,  149. 

of  companies  for  services,  225. 

of  telegraph   company   for   services,   no   unjust   discrimination, 

240. 
for  delivery  of  messages  outside  of  free  limits,  296. 
damages  in  nature  of,  515. 
See  Charges;   Rates. 

CONDITIONS— 

Imposed  upon  grant  of  right  of  way,  78. 

precedent,  to  exercise  of  right  of  eminent  domain,  131. 

CONDUCTION— 

liability    of    electric    railway    for    interference    with    telephone 
company  by,  208. 

CONFLICT  OF  LAW— 

with  reference  to  damages  for  mental  anguish,  598. 
in  cases  involving  contracts  exempting  company  from  common 
law  liability,  374. 

CONNECTING  LINE— 

liability   of  company   over,   363. 

stipulation  as  to  transmission  over,  404. 

contract  to  transmit  message  over  connecting  line,  452. 

statute  making  initial  company  liable,  over,  453. 

duties  and  liabilities  of,  455,  457. 

duty  to  accept  messages  tendered,  456. 

liability  of,  458. 

not  liable  for  negligences  of  initial  line,  458. 

general  rule  as  to  transmission  of  messages  over,  447. 

the  English  rule,  448. 

diligence  of  company   to   deliver   message   to   connecting   line, 

449. 
contract  to  become  liable  for  negligence  of,  451. 
burden  of  proof  in  action  against,  459. 
partnership  arrangement  between,  460. 
effect  of  contract  of  sending  on  connecting  lines,  461. 
senders  right  to  select  route,  463. 
result  of  bad  selection,  464. 
extra  charges  over,  selected  by  sender,  465. 
liability  of  companies  between  themselves,  466. 
liability  for  penalty  imposed  by  statute,  635. 


INDEX.  783 

[References  are  to  sections.] 

CONSOLIDATION— 

consolidated  company  succeeds  to  rights  of  constituent  com- 
panies, 156. 

CONSTITUTIONAL  LAW— 

rights  of  abutting  owner  on  city  streets,  discussed,  97-100. 
talking  of  property  for  public  use  discussed,  109. 
constitutionality  of  statutes  regulating  rates,  224. 
validity  of  statute  imposing  a  penalty  on  company,  623,  624. 

CONSTRUCTION  AND  MAINTENANCE— 

of  lines  in  city  streets,  91,  94. 

control  of  the  state,  92. 

delegation  of  powers  to  city,  93. 

extent  of  city  control,  94. 

lines  erected  without  authority  a  nuisance,  95. 

erection  of  lines  as  a  public  use,  96. 

right  of  abutting  owner  to  compensation  for  lines  in  streets 
discussed,  98-106. 

difference  between  city  streets  and  ordinary  highway,  100. 

cutting  of  trees,  rights  of  owner,  etc.,  125-128. 

must  not  interfere  with  movement  of  trains  of  railroad,  151. 

duties  of  company  in  constructing  line  over  railroad  right  of 
way,  170. 

enjoining  interference  by  one  company  with  another  in  con- 
structing line  in  streets,  179. 

powers  of  city  to  regulate  construction  of  lines  in  streets,  180. 

liability  of  companies  for  injuries  caused  by  improper  location, 
construction  and   maintenance  of  lines,  184-210. 

company  must  exercise  reasonable  care  in,  185. 

strength  and  stability  of  poles,  187. 

failure  to  restore  line  after  storm,  188. 

of  lines  crossing  highways,  railroads  and  streets,  189. 

of  poles,  190. 

duties  of  company  generally,  193. 

failure  to  perform  duty  must  be  shown  to  hold  company  liable, 
194. 

state  may  regulate  construction  of  lines,  215. 

regulation  of  by  municipalities,  231,  233. 

See   Municipal   Corporations. 

CONTRACT— 

franchise  of  corporation  as  a,  46. 

companies   cannot  by   contract  exempt  themselves   from   their 

negligence,  37. 
franchise  as  a,  55. 


784  INDEX. 

[References  arc  to  sections.] 

CONTRACT— Continued. 

to  divide  earnings  with  another  company,  46. 

ultra  vires  agreement  does  not  release  company  from  contract 

obligation,  47. 
right  of  way  by  agreement,  67. 
franchise  in  a  city  as  a,  90. 
with  railroad  for  exclusive  right  invalid,  175. 
limiting   liability   for   negligence,   221. 
state  cannot  impair  obligations  of,  222. 
paper  on  which  message  is  written,  considered,  380. 
against   unavoidable   interruption,   403. 
blank  of  company  as,  411,  412. 
in  case  of  special,  413. 
small  type  used  in,  414. 
of  telegraph  company,  356. 

company  may  contract  against  negligence  in  some  states,  369. 
prohibited  from  contracting  against  acts  of  negligence  in  some 

states,  370. 
to  insure  safe  transmission,  425. 
to  insure  correctness  of  intelligence,  425. 
to  furnish  market  reports,  etc.,  426. 
to  furnish  stock  quotations,  426. 
to  furnish  news,  426,  427. 
messages  relating  to  gambling,  428. 
to  be  performed  on  Sunday  illegal,  435. 
sending  message  on  Sunday,  exception  necessity    and    charity, 

436,  437. 
to  become  liable  for  negligence  of  connecting  line,  451. 
to  transmit  message  over  connecting  line,  452. 
actions  on  extra-terminal,  454. 

effect  of  contract  of  sending  on  connecting  lines,  461. 
action  for  damages  resulting  from  negligent  delays   in  trans- 
missions of  message,  468. 
who  may  sue  on,  when  message  sent  by  agent,  principal  not 

disclosed,   469. 
right  of  third  party  to  sue  on  contract  made  for  his  benefit, 

470-475. 
where  made,  489-491. 
measure  of  damages,  516-543. 
measure   of   damages,   message   relating   to   sales   of   property, 

545,  546. 

See  Sales. 

secondary  evidence  of  unstamped  contract,  693. 

by  telegram  as  affected  by  statute  of  frauds,  703-710. 

time  of  delivery  of  telegram  with  respect  to  making,  709. 


INDEX.  78o 

I  References  are  to  sectlunt-.  ] 

CONTRACT— Continued. 

by  telegram,  723-744. 

by  telegram,  rules  applicable  to  letters  apply,  723. 
alteration  of  message  does  not  affect  rules,  724. 
when  alteration  of  message  not  result  of  negligence  of  com- 
pany, 725,  726. 
what  message  must  contain,  727. 
when  offer  is  complete,  728. 
order  made  by  telegram,  729. 
communication  both  by  post  and  telegraph,  730. 
when  contract  takes  effect,  731. 
there  must  be  a  distinct  and  definite  offer,  732. 
offer  requiring  actual  receipt  of  acceptance,  733,  734. 
how  request  implied,  734. 

acceptance  of  offer  must  be  made  in  due  time,  735. 
revocation  of  offer,  736. 
what  law  governs,  737. 

telegraph  company  agent  of  sender  of  message,  738,  740,  741. 
sender  bound  on  message  as  received,  739. 
within  meaning  of  statute  of  frauds,  company's  agency,  740. 
exception  to  the  rule,  741. 
the  English  rule,  742. 

telegraph  company  as  an  independent  contractor,  743,  744. 
company  sued  on,  745. 
See  Sales. 

CONTRIBUTORY    NEGLIGENCE— 
as  a  defense,   197. 
See  Negligence, 
in  action  for  statutory  penalty,  638. 

CONTROL   AND   REGULATE— 

state  control  of  companies,  214. 
See   Rules  and    Regulations. 

CONVERSATION— 

over  telephone,  as  evidence,  697-700. 
See  Evidence. 

CORPORATIONS— 

telegraph  and  telephone  companies  as  qitafti  public  corporations, 

15. 
charter  and   franchise   distinguished,   43. 
primary  and  secondary  franchise,  45. 
exemplary  damages  in  action  against.  601-604. 
malicious  acts  of  agent  of,  602. 

T.  &  T.— 50 


786  INDEX. 

[References  are  to  sections.] 

CORPORATIONS— Continued. 

liability  for  assault  and  battery,  605. 
for  libelous  prosecution,  607. 
for  malicious  trespass,  608. 
taxation  of  property  of,  646-668. 

taxation  of,  when  right  of  being  is  denied  from  federal  gov- 
ernment, 666. 
See  Franchise;    Foreign  Corporation;   Taxation. 

CRIMES  AND  MISDEMEANORS— 

obstructing,  injuring,  breaking  or  destroying  lines,  201. 

penalties  for  failure  to  deliver  message,  217-219. 

telegraph  company  need  not  receive  message  which  would  ren- 
der it  criminally  liable,  267. 

statute  imposing  duty  to  preserve  secrecy  of  message,  306. 

object  and  purpose  of  statute  imposing  penalty  on  company, 
617. 

construction  of  such  statute,  618,  619. 

See  Penalty. 

D. 

DAMAGES— 

liability  of  telegraph  company  for  in  case  of  nuisance,  16. 

for  negligence  of  companies,  18. 

for  failure  to  transmit  messages  correctly,  34. 

for  publishing  message,  41. 

waiver  of,  failure  of  owner  to  assert  rights  against  company,  53. 

act  of  Congress  does  not  affect  liability  of  company  for  dam- 
ages resulting  from  negligence,  71. 

for  right  of  way  along  railroad,  75. 

measure  of,  to  abutting  owner,  119. 

action  for,  against  company  building  line  without  authority, 
123. 

for  cutting  trees,  16,  125,  126,  127. 

measure  of,   in  condemnation  proceedings,   141. 

measure  of,  in  condemnation  proceedings  over  railroad  right 
of  way,  171,  173. 

for  interferring  with  or  obstructing  current,  206. 

for  deprivation  of  patented  facilities,  256. 

for  negligence  in  transmission  and  delivery  of  messages,  257, 

for  failure  of  telephone  company  to  deliver  message  beyond  its 
line,  upon  contract,  261. 

long  distance  company  liable  for  negligence  in  failing  to  secure 
connections,  264. 

failing  to  transm.it  message,  275. 


INDEX.  787 

[References  are  to  sections.] 

DAMAGES— Continued. 

failing  to  receive  message  properly  tendered,  274. 
for  error  in  messages  under  statutes,  281. 
liability  for  failure  to  inform  sender  of  non-delivery  of  mes- 
sage, 285. 
for  failing  to  deliver  message  promptly,  294. 
for  failure  to  deliver  message,  304. 
for  divulging  contents  of  message,  .30.5. 

injured  party  should  minimize  loss  in  case  of  negligence,  320, 
evidence  of,  touching  wealth  of  company  when  liable  for  ex- 
emplary, 327. 
limiting  of  liability  to  specific  amount,  399,  401. 
liability,  furnishing  market  reports,  stock  quotations,  etc.,  426. 
for  error  in  messages  relating  to   "futures,"   etc.,   428. 
message  for  unlawful  purpose,  429. 
for   sending   libelous   message,   431. 
on  interstate  messages,  432. 
failing  to  transmit  message  on  Sunday,  when  act  of  necessity 

or  charity,  438. 
in  transmission  of  fraudulent  or  forged  messages,  445. 
in  actions  resulting  from  negligent  delays  in  transmission  of 

messages,  467,  480,  491. 
difference  in,  in  nature  of  action,  493. 
pleading  amount  of,  500. 

recovery  of,  where  limitation  in   contract,   508. 
right  of  action  under  special  statutes,  486. 
defined,  515. 

general  rule  as  to  measure  of,  51G. 
not  only  actual  but  contemplative,  517. 
rule  applicable  to  actions  in  contract  and  tort,  518. 
character  of,  arising  from  each  kind  of  action,  519.  . 
that  may  be  recovered,  520,  521,  522. 
remoteness  of,  523,  526,  530. 
speculative,  524,  526,  530. 
resulting  from  intervening  cause,   525. 
loss  of  profits,  526,  527. 
benefit  of  contract,  526,  527. 
effect  of  special  circumstances,  528,  529. 
in  case  of  cipher  messages,  531,  532. 
in  case  of  unintelligible  message,  531,  532. 
effect  of  information  on  face  of  message,  534. 
when  message  discloses  its  importance,  535. 
extent  of  information  to  company  considered,   536. 
a  question  for  jury,  537. 
importance  of  extrinsic  facts,  538. 


788  INDEX. 

[References  are  to  sections.] 

DAMAGES— Continued. 

rule  in  mental  anguish  cases,  539. 

relationship  of  person  affected,  540. 

nearness  of  relationship,  541. 

interest  of  party  to  transaction,  542. 

mental  suffering,  543. 

gains  prevented  and  losses  sustained,  544. 

rule  when  sale  prevented,  545,  546. 

loss  must  be  actual  and  substantial,  547. 

recovery  of  gains  prevented,  548. 

orders  for  goods,  not  delivered,  548,  549. 

measure  of,  neglect  to  deliver  order  for  goods,  549. 

order  for  goods  erroneously  transmitted,  550. 

duty  of  purchaser  in  such  cases,  550. 

goods  shipped  to  wrong  place,  551. 

in  case  of  orders  for  bonds,  stocks,  etc.,  552. 

delay  of  message  directing  agent  to  sell  or  purchase,  553. 

delay  of  message  to  close  option,  554. 

errors  in  announcement  of  prices  or  state  of  market,   555. 

in  case  of  message  contemplating  shipment  of  live  stock,  556. 

loss  of  situation  or  employment,  558,  559. 

recovery  of  actual  loss,  559. 

circumstances  tending  to  reduce  loss,  560. 

loss  of  professional  fees,  561. 

losses   of  otherwise  professional   nature,   562. 

too  remote  and  speculative,  563. 

losses  which  might  have  been  prevented,  564. 

messages  from  creditors  concerning  failing  debtors,  566. 

in  case  of  failure  to  transmit  money,  567. 

mental  anguish  and  suffering,  570,  575. 

ruling  in  So  Relle  case,  572,  573. 

instances  in  which   damages  are   allowed  for  mental  anguish, 
576,  577. 

limitation  of  rule  allowing  damages  for,  578. 

suffering  must  be  real,  579. 

must  be  the  result  of  the  cause  of  complaint,  580. 

mental  suffering  must  be  that  of  the  plaintiff,  581. 

mental  anguish  from  independent  causes,  582. 
no  recovery  for  mental  anguish,  when  prompt  delivery  of  mes- 
sage could  not  have  prevented  injury,  583. 
postponement  of  funeral  services,  584. 
no  recovery  for  mental  anguish  for  failure  to  transmit  money, 

585. 
evidence  in  mental  anguish  cases,  586-590. 

nature  of,  In  mental  anguish  cases,  591. 


INDEX.  789 

[Ueferences  are  to  sections.] 

DAMAGES— Continued. 

none  for  mental  suffering  unaccompanierl  by  pecuniary  loss  or 
physical  injury,  593,  595. 

when  damages  for  mental  suffering  unaccompanied  by  pecun- 
iary loss  or  physical  injury,  may  be  the  basis  of  action,  594. 

in  cases  of  malicious  or  willful  wrong,  594. 

reasons  for  not  allowing  damages  for  mental  suffering,  595. 

for  mental  suffering  following  physical  pain,  597. 

conflict  of  law  with  reference  to  damages  for  mental  anguish, 
598. 

statute  allowing  damages  for  mental  anguish,  599. 

exemplary  or  punitive,  defined,  600. 

punitive  allowed  for  malicious,  wanton  and  willful  acts,  600. 

exemplary,  in  actions  against  corporations,  601-604. 

in  assault  and  battery,  605. 

in  case  of  publication  of  libel,  606. 

in  case  of  malicious  prosecution,  607. 

exemplary  in  case  of  gross  negligence,  610. 

necessity  of  showing  actual  damages  in  order  to  recover  exemp- 
lary, 611. 

when  excessive,  612-615. 

nominal  for  infringment  of  legal  right,  616. 

penalty,  not  damages  for  person  injured,  620. 

statutes  Imposing  penalties  considered,  617-628. 

actual  damages  need  not  be  proven  in  action  for  statutory  pen- 
alty, 632. 

effect  of  repeal  of  statute  imposing  penalty,  644. 

See  Negligence, 

DEBTORS— 

failing,  messages  from  creditors  regarding  measure  of  dam- 
ages, 566. 

DECLARATIONS— 

as  evidence  of  mental  anguish,  586. 

of  employe,  in  evidence,  695. 

message  of  sender  as  his,  673. 

oral,  of  telephone  communication,  697-700. 

DEDICATION— 

of  land  for  city  streets,  extent  of,  99. 

DEFINITION— 

of  terms,  telegraph  and  telephone,  1. 
of  right  of  way,  50. 
of  negligence,  193. 


790  INDEX. 

[References  are  to   sections  | 

DEFINITION— Continued. 

gross  negligence  defined,  372. 
telegram  defined,  670. 

DELIVERY— 

of  messages,  257-308. 

of  message  to  messenger,  272,  408. 

duty  of  company  to  deliver  messages,  2S2 

free  delivery  limit,  296. 

of  messages  to  company  by  telephone  or  verbally,  423. 

in  action  for  statutory  penalty,  defense  that  addressee  resided 

beyond  free  delivery  limit,  637. 
of  message  to  company  as  affected  by  statute  of  frauds,  706. 
of  telegram  to  addressee  as  affected  by  statute  of  frauds,  707. 
time  of  delivery  of  telegram  with  respect  to  making  contract, 
709. 

DEMURRER— 

to  evidence  in  action,  513. 

DESCRIPTION— 

of  route  in  condemnation  proceedings,  135. 
of  poles  and  wires,  136. 

DILIGENCE— 

companies   required   to  exercise,   25. 

required  in  transmission  and  delivery  of  messages,  257. 

in  transmission  of  messages,  275. 

in  delivery  of  messages,  282. 

in  delivering  messages  promptly,  294. 

company  must  use  due  diligence  to  deliver  messages,  300,  301. 

injured  party  must  exercise  reasonable  to  minimize  loss.  320. 

of  company  to  deliver  message  to  connecting  line,  449. 

DIRECTORY— 

duty  of  telephone  company  to  furnish,  246. 
publication  in,  as  a  libel,  606. 

DISCRIMINATION— 

telegraph  company  not  allowed  to  discriminate  in  charges,  239. 
what  is  a  reasonable,  241. 
what  is  an  illegal,  241. 

telephone  companies  must  not  discriminate  in  charges,  243. 
by  telephone  companies  in  rates,   247. 

statutes  forbidding  apply  to  both  telegraph  and  telephone  com- 
panies, 13. 


INDEX.  791 

[RcfiTpnot'P  are  to  RectloDB.l 

DISCRIMINATION— Continued. 

remedy  by  mandamus,  495. 

in  taxation  of  property  of  company,  651. 

company  furnishing  "tickers"  cannot,  749-751. 

DISPATCH— 

See  Message. 

DISTINCTION— 

between  telegraph  and   telephone  company  as  to  liability  for 
negligence  discussed,  260. 

DISTRICT  TELEGRAPH  COMPANY— 
duties  and  liabilities  of,  746. 
company  furnishing  "tickers,"  747. 
its  duties  and  liabilities,  748. 
company  cannot  discriminate,  749. 

unreasonable  stipulations  of  company  not  enforceable,  750. 
protection  against  unfair  competition,  751. 

DUE  CARE— 

defined,  26. 

companies  liable   for  failure  to  exercise,  24. 

required  in  transmission  and  delivery  of  messages,  257. 

company   must   exercise    to    transmit    message    without    error, 

278,  279. 
duty  of  company  as  to,  367. 
required  of  companies,  377. 
See  Negligence. 

DURESS— 

requiring   repetition    of  message,   considered,   382. 

E. 

EASEMENT. 

grant  of  right  of  way,  is  an,  56. 

in  highway  vested  in  public,  79. 

in  city  streets  discussed,  100. 

in  highways  and   streets,  uses   to   which   it  may  be   put.   108. 

acquired  in  condemnation  proceedings,  140. 

acquired  by  company  over  railroad  right  of  way,  151,  171. 

EJECTMENT— 

lies  against  company,  for  building  lines  on  streets  when.  121. 
bv  owner,  after  wrongful  entry  of  company.  53. 


792  INDEX. 

[References  are  to  sections.] 

ELECTRIC  COMPANIES— 

business  of  considered,  202. 

ELECTRIC  LIGHT  COMPANY— 

interference  of  line  with  that  of  telephone  line  considered,  209. 

ELECTRIC  RAILWAY— 

liability  of  to  telephone  companies  for  "conduction"  and  "in- 
duction" considered,  208. 

EMBARGO— 

cities  cannot  lay  an  embargo  on  building  of  lines  in  streets,  94. 

EMINENT  DOMAIN— 

telegraph  along  railway  not  an  additional  servitude,  7. 

statutes  authorizing  telegraph  companies  to  exercise  right  of, 
apply  to  telephone  companies,   13. 

right  of,  may  be  exercised  by  companies,  15. 

how  to  be  exercised,  16. 

telephone  company  may  exercise  right  of,  17. 

effect  of  acceptance  of  right  of,  18. 

erection  of  lines  as  a  public  use,  and  right  to  compensation 
discussed,  96-100, 

amount  of  compensation  to  abutting  owner,  119. 

compensation  to  abutting  owner,  when  fee  of  highway  in  pub- 
lic, 114. 

when  fee  title  in  third  party,  117, 

when  fee  title  in  abutting  owner,  110. 

easement  on  streets  discussed,  109. 

cases  holding  that  adjoining  owner  is  not  entitled  to  compen- 
sation for  lines  in  streets,  101. 

cases  holding  that  adjoining  owner  is  entitled  to  compensation 
for  lines  in  streets,  107. 

taking  of  property  for  public  use  discussed,  98-106. 

right  to  compensation  of  abutting  owner  discussed,  96. 

additional  burden  line  over  railroad  right  of  way,  143. 

right  of  way  defined,  50. 

interest  acquired  in  land,  51. 

just  compensation  to  be  made,  52. 

wrongful  entry  of  company,  owner  not  estopped,  53. 

rights  of  owner  considered,  53. 

how  right  of  way  acquired,  54. 

by  grant  from  federal  government,  55,  56. 

grant  of  right  of  way,  an  easement,  56. 

post  roads  under  federal  law,  57. 

company  must  comply  with  conditions  imposed  by  statute,  58. 


INDEX.  ^^^ 

[References  are  to  sections.] 

EMINENT    DOMAIN— Continued. 

line  of  wires  across  navigable  stream.  58. 

state  cannot  prevent  construction  of  lines  along  military  and 

post  roads,  60. 
lines  over  public  lands,  60. 

right  of  abutting  land  owner  to  compensation    62-66. 
right  of  railroad  company  to  compensation,  64.  6o,  bb. 
right  of  way  by  agreement,  67. 

no  exclusive  right  of  way  under  act  of  Congress.  68. 
difference  as  to  rights  acquired  since  1872,  69. 
state  laws  control  proceedings,  70. 
act  of  congress  does  not  affect  liability  of  companv    toi   neg 

ligence,  71. 
act  does  not  embrace  telephone  companies,   .1. 
nor  apply  to  district  telegraph  system,  <1. 
right  of  way  of  Pacific  railroads,  71. 
state  may  make  grants  of  right  of  way,  7- 
distinction  between  federal  and  state  grants,  7-. 
state  statutes  granting  right  of  way  along  rai  road.  73 
lines  must  not  interfere  with  travel     ^"^'^^^''^''^f'    ''„^ 
railroad  must  be  compensated  for  use  of  its  road-bed.  7-5. 
lines  along  or  across  canals,  76. 
term  highway  embraces  city  street,  77. 
conditions  imposed  upon  grantee,  78. 
easement  in  highways,  79. 
control  of  legislature  over  highways,  79. 
powers  of  municipal  corporations,  80. 
power  to  license,  tax  and  regulate.  80. 
municipality  may  impose  terms  and  conditions,  81. 
municipality  may  require  payment  of  rent.  Si. 
unconditional  statutes  considered.  82. 
consent  of  municipality.  83. 
petition  to  municipality  for  right  of  way.  84. 
compensation.  84.  ^  _ 

compensation  for  right  of  way  to  municipalitj ,  85,  86 
charge  in  nature  of  rental,  87. 
charge  on  income,  88. 
reasonableness  of  rental  charge,  89. 
termination  of  franchise  to  occupy  streets,  90. 
agreement  with  owner,  129. 
condemnation  proceedings,  130. 
conditions  precedent  to  proceedings,  131. 
the  petition  and  its  contents.  132. 
necessity  of  incorporation.  133. 
names  and  residences  of  petitioners,  133 


794  INDEX. 

[Rpfcrpncps  are  to  sections.! 

EMINENT  DOMAIN— Continued. 

names  and  residences  of  landowners,  1S4. 

interests  of  landowners,  134. 

several  interests  and  owners,  134. 

description  of  route,  135. 

description  of  poles,  136. 

notice  to  land  owners,  13V. 

appointment  of  commissioners,  137. 

verification  of  petition,  138. 

effort  at  agreement,  139. 

interest  acquired  by  company,  140. 

measure  of  damages,   141. 

condemning  right  of  way  over  railroad,  i49. 

right  of  foreign  corporation  to  condemn  land,  155,  157. 

consolidation   of   companies,    156. 

company  must  act  in  good  faith,  157. 

EMPLOYEE— 

liability   of  company  for  injuries  to,   198. 

rule  under  statutes,  199. 

company  must  furnish  suitable  appliances,  200. 

companies  must  have  competent,  237. 

distinction  between,  liability   for    injuries    caused    by    strikes 

in  case  of  a  common  carrier,  and  a  telegraph  company,  361. 
liability  of  company  for  fraudulent  or  forged  message  of,  442. 
loss    of   employment   resulting   from     negligence     of    company, 

measure  of  damages,  558,  559. 
liability  of  company  for  malicious  acts  of,  605-608. 
assault  and  battery  by,  605, 

exemplary  damages  in  case  of  improper  selection  of,  610. 
declarations  of,  as  evidence,  695. 
See   Master  and   Servant;    Negligence. 

EQUAL  FACILITIES— 

duty  of  companies  to  furnish,  235. 

telephone   company  must   furnish,   243,   246. 

duty  of  telephone  companies  to  furnish,  248. 

when  telephone  company  may  refuse  to  furnish  service,  250. 

ERROR— 

in  messages,  liability  for,  278-281. 
See  Messages;    Negligence. 

harmless  or    inadvertent   as    a   defense    in    action    to    recover 
statutory  penalty,  639. 


INDEX.  795 

[References  are  to  sections.] 

ESTOPPEL— 

wrongful  entry  of  company  does  not  estop  owner,  53. 
company  cannot  repudiate  conditions  imposed  on  right  of  way, 

82. 
of  land  owner  to  enjoin  construction  of  line,  121,  123. 

EVASION— 

of  rates  fixed  by  statute,  226. 
See  Rates. 

EVIDENCE— 

in  negligence  cases,  196. 

burden  of  proof  and  sufficiency  of  in  negligence  cases,  196. 

burden  of  proof,  in  action  for  injuries  for  failure  in  trans- 
mission of  messages,  276. 

burden  of  proof,  on  failure  to  deliver,  or  erroneous  transmis- 
sion of  message,  311. 

in  negligence  cases  touching  on  the  wealth  or  poverty  of  eith- 
er party,  327. 

of  embarrassed  conditions  of  party  injured  by  delay  of  mess- 
age, 328. 

declaration  of  agent,  329. 

of  subsequent  acts  of  company  in  negligence  cases,  330. 

of  plaintiff's  good  faith  in  case  of  erroneous  message,  331. 

explaining   ambiguous   message,   331. 

as  to  nature  of  business  of  addressee,  332. 

in  defense,  injury  caused  by  act  of  God,  357. 

proof  of  assent  to  stipulation  in  contract,  411,  412 

proof  of  assent  of  addressee  to  stipulations  in  contract,  419. 

in    actions   generally,   492-513,    509,    510. 

of  mental  suffering,  586-590. 

of  malice  of  corporations,  how  shown,  602. 

with  reference  to  pecuniary  condition  of  corporation,  when  ex- 
emplary damages  allowable,  604. 

proof  of  breach  of  duty,  in  failing  to  comply  with  statute  im- 
posing penalty,  628,  629. 

letters  and  telegrams  compared,  670,  671. 

admission  of  telegram  in,  672. 

presumption  as  to  addressee,  673. 

proof  of  authorship  of  message,  674. 

proof  of  signature  to  message,  675. 

telegram  as  declarations  of  sender,  676. 

telegram  as  evidence  of  communication,  677. 

message  as  documentary,  678,  680. 

best  and  secondary,  679. 

telegram  as  best,  680,  681. 


796  INDEX. 

[References  are  to  sections.] 

EVIDENCE— Continued. 

rule  depends  upon  which  document  is  in  issue,  682. 

contents  of  message  delivered  to  addressee,  683. 

messages  given  for  oral  transmission,  684. 

in  actions  to  recover  statutory  penalties,  685. 

secondary  evidence  when  admissible,  686. 

proof  of  absence  of  original  message,  687. 

notice  to  produce  telegram,  688. 

what  evidence  admissible  as   secondary,   689-691. 

in  case  of  wireless  telegraphy,  discussed,  691. 

testimony  of  witnesses,  692. 

secondary  evidence  of  unstamped  contract,  693. 

when  telegram  need  not  be  produced,  694. 

declarations  of  employees  subsequently  employed,  695. 

notice  by  telegram,  696. 

telephone  communication  as,  697. 

identity  of  person  must  be  shown,  698. 

when  operator  converses,  699. 

operator  as  interpreter,  700. 

oath  administered  by  telephone,  701. 

in  relation  to  the  statute  of  frauds,  702-710. 

telegraph  message  as  privileged  communication,   711-722. 

telegram  in  hands  of  company,  712. 

postal  law  not  applicable,  713,  714,  715. 

statutes  forbidding  disclosures  of  telegram,  715. 

when  telegram  may  be  privileged  communication,  717. 

steps  to  obtain  telegram,  718. 

court  inspection  of  telegram,  719. 

description  of  message  in  writ,  720. 

service  of  writ  to  produce  telegram,  721,  722. 

See  Damages;    Message;    Negligence. 

EXCESSIVE  DAMAGES— 

discussed  and  commented  on,  612-614, 

EXCISE  TAX— 

on  companies,  considered,  660. 

EXECUTION— 

franchise  of  company  cannot  be  seized  on,  47. 

EXEMPLARY  DAMAGES— 
defines,  600. 

in  what  cases  allowed,  600. 
for  willful,  wanton  or  malicious  acts,  600,  609. 
as  applied  to  corporation,  601. 


INDEX.  '^9^ 

[UeferenccB  are  to  sectlonH.  ] 

EXEMPLARY  DAMAGES— Continued. 

element  of  malice  necessary,  G02. 

as  question  of  law  or  fact,  603. 

purpose  of  such  damages,  604. 

in  cases  of  assault  and  battery,  605. 

in  case  of  libel,  606. 

in  case  of  malicious  trespass,  608. 

not  recoverable  for  simple  negligence,  609. 

in  case  of  gross  negligence,  GIO. 

necessity  of  showing  actual  damage,  611. 

when  excessive,   612-615. 

company  cutting  trees,  127. 

evidence  touching  wealth  of  company  when  liable  for,  327. 

liability  for,  failing  to  receive  message  properly  tendered,  274. 

inaction  for  malicious  or  willful  wrong,  594. 

See  Damages. 

EXEMPTION— 

company  cannot  contract  to  exempt  it  from  negligence,  37. 
stipulation  exempting  from  liability  over  connecting  lines,  404. 


FACILITIES— 

duty  of  companies  to  have  for  conduct  of  business,  237,  243. 

telephone  companies  must  furnish  equal,  243. 

telephone  company  may   refuse  to  furnish   for  failure  to  pay 

proper  charges,  251. 
See  Equal   Facilities. 

FEDERAL  CONTROL— 

of  companies,  211. 

over   telegraph   line   over   Pacific   railroads   cannot   be   evaded 
by  agreement  between  companies,  213. 

FEDERAL  GRANT— 

of  right  of  way  for  telegraphs,  55-71. 
See  Eminent  Domain. 

FIXTURES— 

injuring  or   destroying,  201. 

FOREIGN  CORPORATION— 

right  of  to  condemn  land,  155. 
consolidation  of  companies,  156. 
state  control  and  regulation  of.  212. 


798  INDEX. 

[References  are  to  sections.] 
FOREIGN   CORPORATION— Continued. 

subject  to  state  regulation,  214. 
taxation  of  by  state,  216. 
state  may  regulate  to  what  extent,  221. 
See  Corporation:   Taxation. 

FORGERY— 

liability  of  company  for  forged  message,  440,  441. 
when  operator  author  of  forged  message,  442. 
by  sub-agent  of  company,  443. 

right  of  addressee  to  sue  for  negligently  transmitting  or   de- 
livering fraudulent  message,  470. 

FRANCHISE— 

term  defined,  42. 

and  charter  distinguished,  43. 

primary  and  secondary,  45. 

alienation  of,  46-48. 

secondary   cannot  be   alienated,  47. 

exception  to  rule,  47. 

company  cannot  lease,  48. 

statute  authorizing  alienation,  49. 

alienation  of,  by  statute  authority,  49. 

conferred  by  federal   government,  55. 

under  act  of  Congress  subordinate  to  public  and  private  rights, 

63. 
termination  of  to  occupy  streets,  90. 
subject  to  police  power,  214. 
power  of  city  to  revoke,  'AcZ. 
special  franchise  taxes,  665. 
See  Lease. 

FRAUD—  * 

blank  printed  in  small  type,  no  fraud,  414. 
liability  of  company  for  fraudulent  message,  440,  441. 
when  operator  author  of  fraudulent   message,   442. 
right  of  addressee  to  sue  for  negligently   transmitting  or  de- 
livering fraudulent  message,  470, 
right  of  action  on  altered  message,  483. 
statute  of  frauds,  as  applicable  to  telegraph  and  telephone  com 

panies,  703-710. 
See  Statute  of  Frauds. 

FUTURES— 

distinguished,  428. 

damages  for  errors  in  messages  relating  to,  428. 


INDEX.  799 

[References  are  to  sections.] 

FUTURES— Continued. 

damages  for  neglect  in  message  for  sale  or  purchase  of,  not 

recoverable,  553. 
message  relating  to,  as  to  statutory  penalty,  625. 
See  Gambling. 


GAINS— 

as  measure  of  damages,  messages  relating  to  sales,  545. 
recovery  of,  as   damages,   548. 

GAMBLING — 

companies  not  required  to  furnish  facilities  to  carry  out  gam- 
bling contracts,  248. 
company  not  obliged  to  furnish  news  for,  427. 
and   "futures"   distinguished,   428. 
See  Futures. 

GENERAL  DENIAL— 
in  actions,  505. 

GROSS  NEGLIGENCE— 

defined,  372. 

exemplary   damages   in   case   of,   610. 

See   Damages;    Negligence. 

H. 

HIGHWAY— 

telegraph  company  may  remove  obstructions  on,  when,  16. 

police  power  of  states  over,  61. 

what  embraced  in  term,  77. 

See  Roads  and  Highways;   Streets. 

HOTEL  CLERK— 

delivery  of  message  to,  288. 

HUSBAND   AND  WIFE— 

delivery  of  message  for  husband  to  wife,  287. 


I. 


ILLEGAL  PREFERENCE— 
in  rates,  241. 


800  INDEX. 

[References  nre  to  sections.] 

ILLEGAL  PURPOSES— 

telephone  company  may  refuse  to  furnish  service  for,  250. 

IMMORAL    MESSAGE— 

telegraph  company  need  not  receive,  267,  429. 

INCORPORATION— 

of  companies,  13. 

See   Charter;    Corporation;    Franchise. 

INDECENT  LANGUAGE— 

company  need  not  accept  message  containing,  429,  i?>0. 

INDUCTION— 

liability  of  electric,  railway  for  interference  with  telephone 
company  by,  208. 

INDUCTIVE  ELECTRICITY— 

considered  and  explained,  205. 

liability  of  electric,  railway  company  for  "conduction"  and  "in- 
duction" considered,  208. 

INJUNCTION— 

when  owner  estopped  to  enjoin  company  after  wrongful  entry, 
53. 

federal  court  cannot  use,  so  as  to  effect  an  equitable  con- 
demnation of  an  easement  for  right  of  way,  70. 

enjoining  company  from  use  of  streets,  upon  termination  of 
franchise,  90. 

enjoining  company  from  erecting  poles  in  street,  without  con- 
sent of  owner,  113. 

lies  for  building  lines  on  streets  without  authority,  121. 

by  land  owner  against  construction  or  maintenance  of  line 
123,  124. 

interference  by  one  company  with  another  constructing  line 
in  streets,  179. 

enjoining  interference  with  vested  rights  of  company  in  streets, 

183. 

restraining  interference  with  or  obstructions  of  electric  cur- 
rent, 206. 

between  companies,  prior  right  of  occupancy,  209. 

between  telephone  and  other  companies  for  injuries  caused 
by  "conduction"  or  "leakage,"  210. 

when  proper  remedy,  to  prevent  deprivation  of  patented  facil- 
ities, 256. 

to  preserve  secrecy  of  message,  305. 

remedy  against  company  by,  496. 


INDEX.  801 

[  Rff ereuces  are  to  sectloiiB. ) 

INSTRUCTIONS— 

to  jury  in  actions,  512. 

INSTRUMENTS— 

companies  must  have  suitable,  237. 

duty  of  teleplione  company  to  fuinisli,  24G,  248. 

See  Facilities. 

INSURGENTS— 

as  public  enemies,   359. 
INTERFERENCE— 

with  company  by  other  electrical  appliances,  202. 

of  currents  of  electricity,  204. 

injunction  to  restrain,  obstructions  to  electric  current,  206. 

INTERSTATE  COMMERCE— 

regulating  charges  within  a  state,  19. 

lines  over  post  roads,  public  lands,  etc.,   57-60. 

company  as  instrument  of,  211. 

the  power  to  regulate,  212. 

police  power  of  Congress  over,  216. 

state   cannot  fix  rates   on,   228. 

company   engaged   in    cannot   be    required    to    pay   license   tax 

as  a  condition  to  do  business,  233. 
liability  of  company  for,  432. 
statute  imposing  penalty  on   company  has   no  extra-territorial 

effect,  622. 
validity  of  statute  imposing  penalty,   623,  C24. 
obstruction  of,  by  taxation,  653. 

property  of  company  used  in,  subject  to  state  tax,  654. 
taxation  on  gross  receipts  of  company,  661. 
taxation  on  messages  of  company  generally,  662. 
message  of  telephone  company  as,  668. 

INTEREST— 

when  payment  of  taxes  is  delayed,  667. 
INTERPRETER— 

telephone  operator  as,  700. 
ISSUE— 

in  actions,  508. 


JUDICIAL  NOTICE— 

courts  will  take,  of  duty  of  company  with  respect  to  construc- 
tion and  maintenance  of  lines,  194. 
T.  &  T.— 51. 


802  INDEX. 

[References  are  to  sections.] 

JURY— 

questions  for,  511. 

instructions  to,  512, 

withdrawal  of  case  from  jury,  513. 

amount  of  damages  a  question  for,  537. 

allowance  of  exemplary  damages  by,  603. 

See    Damages;    Negligence;    Law  and    Fact. 


LABOR— 

lien  for,  on  property  of  telegraph  company,  20. 

LAND  OWNER— 

rights  of,  after  condemnation  proceedings,  140. 

additional   compensation,  for  line  over  railroad   right  of  way 

145,  146. 
See   Eminent   Domain. 

LAW  AND  FACT— 

questions  for  jury,  511. 

question  of  exemplary  damages,  603. 

See  Jury. 

LEASE— 

of  franchise  of  company,  47. 

company  cannot  lease  its  franchise,  48. 

implied  from  statutory  authority  to  alienate  franchise,  49. 

of  patented  device  to  telephone  company,  253. 

See  Franchise. 

LEGISLATURE— 

power  over  public  highways,  79. 
may  delegate  authority,  79. 
legislative  grant  may  be  unconditional,  82. 

discretion   of,   in   classifying   property   of    company    for    taxa- 
tion, 649. 
See  State;   Statute. 

LETTER— 

and  telegram,  compared,  671. 

contract  when  communicated  by  post  and   telegram,  730. 

LIABILITY— 

statute  liability  of  company,  34. 

of  companies   for  injuries   caused   by   improper  location,   c 
struction  and  maintenance  of  lines,  184-210. 


on- 


INDEX.  803 

[References  are  to  sections.] 

LIABILITY— Continued. 

of  company  furnishing  "tickers,"  747,  748,  751. 

liability  of  company  in  transmission  and  delivery  of  messages, 

257-308. 
of  company  for  negligence,  309-332. 
as  affected  by  rules  and  regulations,  333-353. 
limiting  common  law  liability,  366-424. 

on  contracts  to  furnish  market  reports  and  other  news,  425-46C. 
See  Message;    Negligence. 

LIBEL  AND  SLANDER— 

message  containing  need  not  be  accepted,  431. 
damages  in  action,  594. 
liability  of  company   for,   606. 
exemplary  damages  in  action  for,  606. 

LICENSE— 

and  franchise  distinguished,  44. 
to  companies  by  cities,  93. 
parol,  to  enter  land,  129. 

LICENSE  TAX— 
by  city  on  lines,  61. 
imposed  by  city,  81. 
rental  required  by  city  not  a,  87. 
imposed  by  city  on  line  constructed  in  streets,  180. 
as  rental  charge,  233. 
company  engaged  in  interstate  commerce  cannot  be  forced  to 

pay  license  tax  as  a  condition  to  do  business,  233. 
within  police  power,  233. 

on  business  of  company  as  interstate  commerce,  invalid,  558. 
distinction  between  property  tax  and  privilege  tax,  659. 
of  city,  on  telegraph  company,  664. 

LIEN— 

superior  to  mortgage  lien  on  telegraph  company,  20. 

for  taxes  on  property  of  company,  652. 

for  material,  on  property  of  telegraph  company,  20. 

LIGHT— 

obstruction,  of,  by  telegraph  wires,  etc.,  16. 

LIGHT    COMPANIES— 

business  of  considered,  202. 

LIMITATION— 

for   presenting  claims   against   company,   385-390. 
when  limitation  of  time  begins  to  run,  390,  391. 


804  INDEX. 

[References  are  to  sections.] 

LIMITATION— Continued. 

compliance  with  stipulation,  392. 

actions  for  mental  anguish  do  not  survive,  592. 

LIVESTOCK— 

delay   in   message    for    contemplated    shipment    of    live    stock, 
damages.  556. 

LOCATION— 

company    must    exercise    reasonable    care    in   location   of   line 
on  highways  and  streets,  185. 

LOSS— 

remote  and  speculative,  549. 
See  Damages. 

M 
MALICE— 

defined,  602. 

exemplary  damage  for  malicious  acts,  601. 

MALICIOUS  ACTS— 

exemplary  damages  for,  600-608. 

MALICIOUS  PROSECUTION— 
exemplary  damages  for,  607. 

MANDAMUS. 

to  furnish  service,  229. 

to  compel  transmission   of  message,   245. 

to  compel  telephone  company  to  comply  with  lawful  rates,  247. 

enforcing  duties  of  telephone  company  by,  254. 

proper  parties  in  proceeding  against  telephone  company,  255. 

action  against  company  by,  495. 

MARKET  REPORTS— 

contract  to  furnish,  426. 

duty  and  liability  of  company  in  furnishing  quotations  746-751. 

MASTER  AND  SERVANT— 

liability  of  company  for  injuries  sustained  by  servant,  198. 

rule  under  statutes,  199. 

company  must  furnish  suitable  appliances,  200. 

See  Employe;    Negligence. 

MATERIAL— 

lien  for,  on  property  of  telegraph  company,  20. 


INDEX.  805 

I  References  are  to  sections.] 

MENTAL  ANGUISH— 

damages  for,  539-543,  570. 

action  in  contract  or  tort,  571. 

ruling  in  So  Relle  case,  572.  573. 

rule  in  federal  courts,  574. 

grounds  upon  which  damages  allowed,  575. 

damages  allowed  for  in  Louisiana,  576. 

instances  in  which  damages  for  are  allowed,  577. 

limitation  of  rule  allowing  damages  for,  578. 

suffering  must  be  real,  579. 

must  be  the  result  of  the  cause  of  complaint,   580. 

suffering  must  be  that  of  the  injured  party,  581. 

anguish  from  independent  causes,  582. 

no   recovery    of   damages    when    prompt   delivery    of    message 

could  not  have  prevented  injury,  583. 
postponement  of  funeral  services,  584. 

no  recovery  for,  for  failure  to  transmit  money,  585. 
evidence  of  mental  suffering,  586,  587. 

sickness  as  result  of,  588. 

evidence  in  defense  to  claim  for,  589. 
materiality  of  relationship,  590. 
nature  of  damages  for,  591. 

actions  for,  do  not  survive,  592. 

no  damages  for  mental   suffering  not  accompanied   by  pecun- 
iary loss  or  physical  injury,  593,  595. 

when  damages  for  mental  suffering  unaccompanied  by  pecun- 
iary loss  or  physical  injury  may  be  basis  for  action,  594. 

in  case  of  malicious   or  willful  wrong,  594. 

reasons  for  not  allowing  damages  for,  595. 

mental  suffering  following  physical  pain,  597. 

conflict  of  law  with  reference  to  damages  for,  598. 

statute  rule  of  damages  for,  599. 

excessive   damages   allowed   for,   613,   614. 

MESSAGE— 

company  must  comply  with  statute  concerning,  33. 

substantial  compliance  with  form  of,  35. 

company  not  required  to  send  until  paid  or  offered  to  be  paid,  39. 

must  be  presented  within  office  or  legal  hours,  39. 

certain  need  not  be  transmitted,  39. 

subject  matter  of,  criminality,  39, 

to  be  forwarded  in  order  of  time  of  receipt,  40. 

precedence  of  governmental  messages  over  private.  40. 

not  a  privileged  communication,  41. 

company  not  disclose  or  use  contents  of  message,  41. 

preference  of   certain,   41. 


806  INDEX. 

[References  are  to  sections.] 

MESSAGE — Continued. 

laws  regulating  delivery  of,  212. 
penalty  for  failure  to  deliver,  217-219. 
power  of  state  to  fix  rates,  223-228. 
state  cannot  fix  rates  on  interstate  business,  228. 
must  be  transmitted  in  order  of  reception,  238. 
preferences  of  certain  messages,  238. 
illegal  discrimination  in  rates,  241. 
reasonableness  of  rates  for,  how  determined,  242. 
telephone  companies  must  not  discriminate  in  charges,  243. 
telephone  companies  must  transmit  in  order  of  reception,  243. 
telephone   company   receiving   and   delivering   message   to   tel- 
egraph company,  249. 
telegraph  company  liable  for  negligence  in  transmission   and 

delivery  of,  257. 
liability  of,  telegraph  company  discussed,  258. 
company  not  liable  as  ordinary  bailee  for  hire,  259. 
company  cannot  contract  away  its  liability  for  negligence  in 

the  transmission  and  delivery  of,  259. 
distinctions  between  telegraph  and  telephone  company  in  trans- 
mission and  delivery  of,  discussed,  260. 
telephone  company  need  not  deliver  beyond  its  line,  261. 
when  telephone  company  liable  for  failure  to  deliver  beyond 

its  line,  261. 
telephone  company  must  make  reasonable    search    for    party 

called,  262. 
when   telephone   company   collects   extra    charge   for   delivery, 
it  is  liable  same  as  telegraph  company  for  failure  to  de- 
liver, 263. 
long  distance  company  liable  for  negligence  in  failing  to  se- 
cure connection,  264. 
duties  of  telegraph   company  to  transmit  and   deliver  do   not 

arise  altogether  from  contract,  265. 
telegraph  company  is  under  legal  duty  to  accept,  transmit  and 
deliver,  without  error  or  delay,  all  proper  messages,  after 
compensation  received,   266,   267. 
telegraph  company  need  not  receive  immoral  message,  or  mes- 
sage that  would  subject  it  to  prosecution,  267. 
nor  message  that  would  subject  company  to  action  of  tort,  268. 
company  may  decline  to  receive,  when  lines  are  down,  269. 
message  must  be  properly  tendered,  270. 
message  must  be  in  writing,  270. 
message  must  be  on  company's  blank,  271. 
delivery  of  message  to  messenger  boy,  272. 
necessity  of  prepayment  of  charges,   273. 


INDEX.  807 

[References  are  to  sections.] 

MESSAGE— Continued. 

liability  for  damages  for  failure  to  receive  messages  properly 
tendered,  274. 

must  be  transmitted  without  unnecessary  delay,  275. 

burden  of  proof  In  action  for  injury  caused  by  delay  in  trans- 
mission of  message,  276. 

duty  of  company  to  inform  sender  when  delay  unavoidable,  277, 

company  must  exercise  due  care  to  transmit  message  without 
error,  278. 

degree  of  care  in  transmission,  279. 

liability  under  statutes  for  all  mistakes,  280,  281. 

duty  of  company  to  deliver  messages,  282. 

excuse  for  non-delivery,  283. 

insufficient   excuses,   284. 

duty  to  inform  sender  of  non-delivery,  285. 

to   be   delivered  to   addressee,   286. 

delivery  of  message  to  wife,  287. 

delivery  to  hotel  clerk,  288. 

where  two  parties  have  same  name,  delivering  to  one,  289. 

delivery  of  messages  in  care  of  another,  290. 

delivery  of  message  over  telephone,  290,  292. 

delivery  to  authorized  agent,  291. 

written  copy  should  be  delivered,  292. 

no  duty  to  forward  messages,  293. 

time  of  delivery,  294. 

two   messages    of   same   nature    received    within    office    hours, 
delivery,  295. 

free  delivery  limit,  296. 

when  addressee  lives  several  miles  from  office,  297. 

waiver  by  company  of  extra  compensation  for  delivery  beyond 
free  limit,  298. 

when  no  delivery  limit  is  fixed,  299. 

company  must  use  due  diligence  to  deliver,  300,  301. 

at  place  of  business,  and  of  residence,  301. 

diligence  in  delivering  as  a  question  of  law  or  fact,  302. 

failure  to  designate  with  accuracy  the  address,  303. 

penalty  imposed  for  failure  to  deliver,  304. 

duty  to  preserve  secrecy  of,  305. 

duty  to  preserve  secrecy  imposed  by  statute,  306. 

duty  as  to  secrecy  applicable  to  telephone  company,  307. 

sent  in  care  of  common  carrier,  308. 

unreasonable  delay  in  delivery  of,  311. 

presumption  of  negligence  of  company,  311. 

non-payment  of  charges  for,  when  no  defense  to  action  for  neg- 
ligence, 313. 


808  INDEX. 

[References  are  to  sections.] 

MESSAGE — Continued. 

delivery  of,  beyond  free  delivery  limits,  313. 

contributory  negligence  of    plaintiff  as    a    defense    in    actions 

for  negligence  in  transmission  or  delivery  of,  314,  326. 
must  be  written  legibly,  315.  338. 
address  of  message  must  be  definite,  316. 
error  in  address,  316. 

operator  writing  for  sender  as  senders'  agent,  317. 
duty  to  affix  stamp  to,  318. 
refusal  to  transmit  when  not  stamped,  318. 

delay  in  delivering  to  company  as  contributory  negligence,  319. 
injured  party  should  minimize  loss,  320. 
company  presumed  to  perform  its  contract,  321. 
duty  of  sender  of  message  to  inquire  into  mistake,  321. 
duty  of  sender  to  resort  to  other  means  when  he  ascertains 

neglect  of  company  to  transmit,  322. 
addressee  misinterpreting,  323. 
acting  on  ambiguous  message,  323. 
duty  of  addressee  to  read  carefully,  324. 
delay  in  delivery  of,  as  negligence,  325. 
contributory  negligence  of  injured  party,  326. 
evidence  of  embarrassed  condition  of  injured  party,   delay  of 
message,  328. 

evidence  of  plaintiff's  good  faith  in  case  of  erroneous,  331. 

right  of  company  to  make  reasonable  rules  and  regulations  as 
to,  333. 

rule  requiring  prepayment  of  charges  for  answer  to  message, 
335. 

rule  requiring  message  to  be  written,  338. 

rule  providing  that  message  shall  not  contain  indecent  or  im- 
moral language,  338. 

requirement  of  signature  to,  338. 

company  cannot  demand  that  it  be  informed  of  the  nature  and 
purport  of,  339. 

requiring  delivery  at  ofSce  of  company,  340. 

delivery  of,  to  messenger  of  company,  340. 

prepayment  of  charges  on,  341. 

extra  charges  for  delivery  beyond  free  delivery  limit,  342. 

deposit  of  charge  for  answer  to  message,  343. 

must  be  delivered  during  office  hours,  346. 

delivery  of,  after  office  hours,  348. 

office  hours  as  affecting  duty  of  company.  350. 

delivery  of  night  message,  350. 

knowledge  of  sender  as  to  office  hours,  351. 


INDEX.  809 

[References  are  to  sections.] 

MESSAGE— Continued. 

liability  of  company  for  acts  of  God,  mobs,  strikes,  etc.,  355- 

362. 
liability  of  company  over  connecting  lines,  36^. 
company  receiving  after  office  hours  or  contrar.    to  tluir  rules 

and  regulations,  353. 
stipulations  in  contract  of  sending,  366. 
contracts  against  negligence,  367. 
statute  imposing  penalties  on  company   for  negligently   tians- 

mitting  or  delivering,  368. 
ignorance  of  operators   of  the  locality  of  the   place   to   which 

message  is  sent,  373. 
conflict  of  law,  in  cases   involving  contracts   exempting   com- 
pany from  common-law  liability,  374. 
stipulation  for  repeating  messages,  375,  376. 
extra  charge  for  repeating  message  considered,  378. 
delay  in  delivering,  or  non-delivery  considered,  where  message 

is  repeated,  379. 
paper  on  which  written,  as  a  contract,  380. 
distinguished  from  bill  of  lading  or  freight  receipt,  381. 
stipulation  for  repeating  message  binding  on  sender  only,  384. 
request  for  repeating,  what  is,  383. 
stipulation   as  to  time   of  presenting   claim   against   company, 

validity  of,  385-o90. 
delay  in  receiving  message  does  not  modify  stipulation,  391. 
when  limitation  of  time  begins  to  run,  390,  391. 
compliance  with  stipulation  as  to  presentment  of  claims,  393. 
when  such  stipulation  not  binding,  392. 
form  and  requisites  of  claim,  395. 
claim  must  be  presented  to  proper  officer,  396. 
presentment  and  notice  of  claim  against  company,  396-398. 
limiting  liability  to  specific  amount,  399,  401. 
time  of  delivery  of  night  messages,  402. 
special  contract  against  unavoidable  interruption,  403. 
stipulation  as  to  transmission  over  connecting  lines,  404. 
stipulations  as  to  cipher  messages,  405,  406. 
■where  and  when  message  accepted,  407. 
delivery  of,  to  messenger,  408. 

waiver  of  stipulation  limiting  liability  of  company,  409. 
burden  of  proof  when  company  relies  upon  stipulation  in  con- 
tract, 410. 
proof  of  assent  to  stipulations  in  company  blank,  411,  412. 
special  contracts  for  sending,  413. 
blanks  printed  in  small  type,  414. 
assent  of  addressee  to  stipulations,  415-419. 


810  INDEX.. 

IReferences  are  to  sections:.] 

MESSAGE— Continued. 

stipulations  posted  in  office  of  company  not  binding,  420. 
written  on  blank  of  another  company,  421,  422. 
delivery  to  company  by  telephone  or  verbally,  423. 
knowledge  of  agent  of  company  concerning,  424. 
contract  insuring  safe  transmission,  425. 
contract  to  insure  correctness  of  intelligence,  425. 
contract  to  furnish  market  reports,  etc.,  426. 
contracts  to  furnish  news,  426,  427. 
in  regard  to  gambling  transactions,  428. 

damages  for  errors  in  messages  relating  to  "futures,"  etc.,  428. 
company  need  not  accept,  containing  indecent  language,  429. 
nor   message  that  would  subject  company  to  action,  430. 
nor  message  that  is  libelous,  431. 

liability   for    interstate    messages    recovery    of    statutory    pen- 
alty, 433. 
company  need  not  send  on  Sunday,  134. 
Sunday  contracts  void,  435.  • 

matters  of  necessity  and  charity,  436,  437. 
forged  and  fraudulent  messages,  440,  441. 
when  operator  author  of  fraudulent  or  forged  message,  442. 
liability  of  company  for  forgery  of  sub-agent,   443,  444. 

amount  of  damages,  in  transmission  of  fraudulent  or  forged 
messages,  445. 

general  rule  as  to  messages  over  connecting  lines,  446. 

English  rule  in  such  cases,  447. 

acceptance  of  all  charges  does  not  change  rule,  448. 
diligence  of  company  to  deliver  to  connecting  line,  449. 
rule  applies  to  telephone  company,  450. 

contract  to  transmit  over  connecting  line,  452. 

statute  making  initial  company  liable    over    connecting    line, 
453. 

actions  on  extra-terminal  contracts,  454. 

duty  of  connecting  line  to  accept,  456,  457, 

liability  of  connecting  line,  458. 

eifect  of  contract  of  sending  on  connecting  lines,  461. 

senders  right  to  select  route,  463. 

result  of  bad  selection,  464. 

extra  fee  or  charges  over  connecting  line  selected  by  sender, 
465. 

action  for  damages  resulting  from  negligent  delays  in   trans- 
mission of  messages,  467-491. 

who    may    sue    when   message    sent   by    agent,    principal    not 
disclosed,  469. 

right  of  addressee  to  sue  for  negligently  transmitting  or  de- 
livering message,  470,  476. 


INDEX.  811 

[Kefcrences  are  to  sections.] 

MESSAGE— Continued. 

right  of  third  party  to  sue  on  contract  made  for  his  ben'^'flt, 
471-474. 

action  under  statute,  resulting  from  negligent  delays  in  trans- 
mission or  delivery  of  messages,  482. 

right  of  action  on  altered  message,  483. 

addressee's  right  of  action,  when  messages  not  repeated,  487. 

action  between  sender  and  addressee,  488-490. 

distinction  between  altered,  and  one  not  sent  or  delivered  as  to 
action,  494. 

measure  of  damages  in  actions  against  company,  516-54'3. 

measure  of  damages  in  case  of  cipher  or  unintelligible  message, 
531,  532. 

effect  of  information  on  face  of  message,  as  to  damages,  534- 
536. 

copy  of,  in  pleading,  501. 

measure  of  damages  in  actions  for  negligence  concerning,  516- 
543. 

See  Damages. 

concerning  sale  of  property,  duty  of  company,  545. 

exemplary  damages,  when  messenger  intentionally  fails  to  de- 
liver, 609. 

tax  assessed  on  messages  in  general,  662. 

defined,  670. 

letter  and  message  compared,  671. 

as  declarations  of  sender,  676. 

as  evidence  of  communication,  677. 

as  documentary  evidence,  678,  680. 

rules  of  evidence  as  to,  671-701. 

statute  of  frauds  as  applicable  to,  705-710. 

telegram,  as  privileged  communication,  711-722. 

postal  law  not  applicable  to  telegraph  messages,   713-714. 

statutes  forbidding  disclosure  of  telegram,  715. 

contracts  by  telegram,  723-744. 

telegraph  company  may  refuse  improper  message,  267. 

See  Negligence. 

MESSENGER— 

delivery  of  message  to,  272,  408. 
duty  of  company  to  keep  at  station,  282. 

exemplary  damages,  when  messenger  intentionally  fails  to  de- 
liver, 609. 

MILITARY  ROADS— 

telegraph  lines  along,  57-60. 
right  of  way  over.  142. 


812  INDEX. 

IReferences  are  to  sections.] 

MISTAKES— 

liability  for  in  messages,  278-281. 

MOBS— 

liability  for  injuries  caused  by,  360.  • 

MENTAL  SUFFERING— 
See  Mental  Anguish. 

MONEY— 

no  recovery  for  mental  anguish,  for  failure  to  transmit,  585. 
failure  to  transmit,  567. 

MEASURE  OF  DAMAGES— 
See  Damages. 

MONOPOLY— 

illegal  preference  in  rates,  241. 
See  Discrimination;    Equal  facilities. 

MORTGAGE— 

of  franchise  of  company,  46,  47. 

authority  to  sell,  gives  right  to  mortgage,  49. 

MUNICIPAL  CORPORATIONS— 

powers  of,  over  streets,  etc.,  80. 

terms  and  conditions  imposed  on  company,  81. 

may  impose  conditions  on  right  of  way,  82. 

when  legislative  grant  unconditional,  82. 

lines  on  streets — consent. of  city  necessary,  83. 

termination  of  franchise,  90. 

powers  to  regulate  construction  of  line  in  streets,  180. 

power  of,  to  regulate  companies  and  their  lines,  230,  231. 

power  of  city  to  revoke  franchise,  232. 

when  city  may  abate  line  as  a  nuisance,  232. 

power  to  impose  license  tax,  233. 

taxation  by,  compensation  for  use  of  streets,  663. 

petition  of  company    for  easement  in  street,  84. 

right  to  construct  lines  on  streets,  91. 

powers  of  municipalities  considered,  91. 

control  of  the  state  over  lines,  91. 

power  of  city  to  pass  ordinances,  91. 

may  license  company  to  build  lines  in  streets,  83,  93. 

may  control  erection,  construction  and  maintenance  of  lines,  94. 

lines  erected  without  authority,  as  a  nuisance,  95. 

right  of  abutting  owner  to  compensation  discussed,  96. 

erection  of  lines  as  a  public  use,  96,  97. 


INDEX.  813 

[References  are   to  sections.] 

MUNICIPAL  CORPORATION— Continued. 

taking  of  property  for  public  use  discussed,  97-106. 

dedication  of  land  for  streets,  extent  of,  99. 

power  over  dedicated  streets,  100. 

difference  between  streets  and  ordinary  highway,  100. 

cases   with   reference   to  the   right  of  an   adjoining  owner   to 

compensation,  for  lines  in  city  streets,  referred  to,  101. 
rights  of  abutting  owner  in  city  streets  discussed,  110. 
trees  on  sidewalks,  128. 

liability  of  company  for  cutting  trees  on  city  streets,  125-128. 
cannot   grant   exclusive   right   to   company   over   railroad   right 

of  way,  179. 
reservations   in    ordinances    granting   franchises,    180. 
ordinance  granting  right  in  streets,  as  a  vested  right.  180. 
construction  of  lines  crossing  streets,  189. 
construction  and  maintenance  of  poles,  190. 
extension  of  lines  on  streets,  183. 

liability  for  the  improper  construction  of  poles  in  streets,  190. 
cannot  regulate  rates  without  express  authority,  234. 
cannot   annul   or   alter  franchise   granted,   222. 

N. 

NAME— 

delivery  of  message  where  two  parties  have  same,  288. 
proof  of  signature  to  message,  675. 

NAVIGATION— 

obstruction  to  by  lines.  191. 

NEGLIGENCE— 

liabilities  of  telephone  and  telegraph  companies  distinguished, 
3,  4. 

liability  of  companies  for,  18. 

co?ripanies  liable  for,  24. 

companies  liable  for  failure  to  exercise  due  care  in  transmit- 
ting messages,  24. 

failure  to  transmit  message  correctly,  prima  facie  negligence, 
36. 

burden  a  company  to  absolve  itself  from  negligence,  36. 

company  cannot  by  contract  exempt  itself  from  negligence,  37. 

injuries  from  abandoned  wires,  186. 

strength  and  stability  of  poles,  187. 

failure  to  restore  line  after  storm,  188. 

liability  for  injuries  from  broken  and  hanging  wires,  188. 


814  INDEX. 

[References  are  to  sections.] 

NEGLIGENCE— Continued. 

construction  of  lines  crossing  highways,  railroads  and  streets, 

189. 
liability  for  falling  poles  and  other  fixtures,  190. 
obstructing  navigation  by  cable,  191. 
as  the  basis  of  action  for  injuries,  192. 
what  constitutes,  definition  of  term,  193. 
duties  of  company,  generally,  193. 
failure  to  perform  duty  must  be  shown,  194. 
as  question  of  law  or  fact,  194. 
no  liability  unless  injury  sustainea,  195. 
proximate  cause  of  injury,  195. 
evidence  of,  196. 
burden  of  proof,  196,  276,  310. 
sufficiency  of  evidence,  196. 
contributory  negligence  as  a  defense,  197. 
liability  of  company  for  injuries  sustained  by  servant,  198. 
rule  under  statutes,  199. 

company  must  furnish  suitable  appliances  to  employee,  200. 
interference  with  or  obstruction  of  electric  current  by  other 

company,  206-210. 
laws  imposing  penalties  from  negligence,  211. 
limiting  liability  of  company  for,  221. 

liability  for,  in  transmission  and  delivery  of  messages,  257. 
telegraph  company  cannot  contract  away  its  liability  for  neg- 
ligence in  the  transmission  and  delivery  of  messages,  259. 
distinction  between  telegraph  and  telephone  company  as  to  lia- 
bility for  in  transmission  and  delivery  of  messages,  dis- 
cussed, 260. 
long  distance  telephone  company  liable  for  damages  in  failing 

to  secure  connection,  264. 
of  company,  in  failing  or  incorrectly  entering  station  in  guide 

book,  269. 
where  message  not  on  blank  of  company,  271. 
in  transmission  of  message,  275. 

burden  of  proof,  in  action  for  injuries  caused  by  delay  in  trans- 
mission of  message,  276. 
in  delivery  of  messages  promptly,  294. 
general  duties  of  companies,  309. 
presumption  of  negligence,  310. 
rebutting  presumption  of,  312. 
delay  in  delivery  of  message,  313. 
contributory  negligence  as  a  defense,  314. 
of  sender  in  writing  message,  315. 


INDEX.  815 

[Keferenccs  are  to  sections. J 

NEGLIGENCE— Continued. 

of  sender  failing  to  send  without  delay,  319. 

duty  of  sender  to  minimize  loss  in  case  of  negligence,  320. 

company  presumed  to  perform  its  contract  in  transmission  and 

delivery  of  message,  321. 

duty  of  sender  of  message  to  Inquire  into  mistake,  321. 

contributory  negligence  of  addressee,  323,  325. 

misinterpreting  message,  323. 

duty  of  sendee  to  read  message  carefully,  324. 

of  company  must  be  proximate  cause  of  injury,  325. 

delay  in  delivering  of  message  as,  325. 

contributory  negligence  of  injured  party,  326. 

evidence  touching  on   the  wealth  or  poverty  of  either  party, 
327. 

evidence  touching  embarrassed  condition  of  Injured  party,  328. 

declarations  of  agent,  329. 

evidence  of  subsequent  acts  of  company,  330. 

company  cannot  make  and  enforce  rules,  relieving  it  from  lia- 
bility for,  333. 

contract  to  be  liable  for  act  of  God,  355,  356. 

burden  of  proof,  defense  act  of  God,  357. 

not  liable  for  injuries  caused  by  public  enemy,  358,  359. 

liability  for  injuries  caused  by  mobs,  strikes,  etc.,  360,  361,  362. 

liability  of  company  over  connecting  lines,  363. 

telegraph  company  exonerated  by  negligence  of  sender  or  sen- 
dee, S64. 

burden  of  proof,  defense  that  loss  was  caused  by  mob  or  strike, 
365. 

telegraph  companies  cannot    exempt    themselves    by    contract 
from,  367. 

rule  applicable  to  statutory  penalties,  368. 

statute  imposing  penalties  on  company  for  negligently   trans- 
mitting or  delivering  message,  368. 

company  may  contract  against  in  some  states,  369. 

prohibited  against  contracting  against  in  some  states,  370. 

what   constitutes   gross   negligence,   371,   372. 

ignorance  of  operator  of  the  locality  of  the  place  to  which  mes- 
sage is  sent,  373. 

conflict  of  law  in  cases  involving  contracts   exempting   com- 
pany from  common-law  liability,  374. 

stipulation  for  repeating  messages,  375,  376. 
delay  in  delivery  or  non-delivery  considered  where  message  is 
repeated,  379. 

time  in  which  claim  is  to  be  presented,  385,  386. 


816  INDEX. 

[References  are  to  sections.] 

NEGLIGENCE — Continued. 

provisions  of  statutes,  considered,  387. 

such  stipulations  held  void  as  against  public  policy,  389. 

compliance  with  stipulation  as  to  time  of  presenting  clai'Qs, 

393. 
waiver  of  written  claim,  394. 
presentment  and  notice  of  claim  for,  396,  398. 
limiting   liability   to   specific   amount,    399. 

liability  of  company  in  transmitting  fraudulent  or  forged  mes- 
sage, 441. 
contract  to  become  liable  for,  over  connecting  line,  451. 
general  rule  as  to  messages  over  connecting  line,  446. 
burden  of  proof  in  action  against  connecting  line,  459. 
liability  for  defaults  of  common  agent,  462. 
liability  of  companies  as  between  themselves,  466. 
action  for  damages  resulting  from  negligent  delays  in  trans- 
mission or  delivery  of  messages,  467-491. 

right  of  addressee  to  sue  for  negligently  transmitting  or  de- 
livering message,  470,  476,  478. 

right  of  third  party  to  sue  on  contract  made  for  his  benefit, 
471-475. 

pleading  and  practice  in  actions  for,  493-513. 

presumption  of,  burden  of  proof,  507. 

measure  of  damages  in  action  for,  516-543. 

measure  of  damages  in  case  of  sales  prevented,  546. 

loss  must  be  actual  and  substantial,  547. 

damages  neglect  to  deliver  order  for  goods,  549. 

measure  of  damages,  in  cases  of  loss  of  employment,  557-565. 

measure  of  damages,  cases  of  loss  of  expected  profits  on  sales 
by  error  or  delay  in  transmission  of  message,  544-556. 

exemplary  damages  in  actions  for  malicious  or  willful  wrong, 

594. 

to  recover,  it  must  be  shown,  that  there  has  been  a  loss  sus- 
tained by  the  company's  negligence  and  that  the  same 
could  and  would  have  been  prevented,  565. 

exemplary  damages  in  action  for,  600-611. 

exemplary  damages,  when  recoverable,  600-608. 

exemplary  damage  not  allowed  for  simple  acts  of,  609. 

exemplary  damages  in  case  of  gross  negligence,  610. 

nominal  damages  for  infringement  of  legal  right,  616. 

excessive  damages  considered,  612-615. 

construction  of  statutes  imposing  penalties  for,  618,  619. 

who  may  maintain  action  for  penalty,  621. 

contributory  negligence  as  a  defense,  in  action  for  statutory 
penalty,  638. 

See  Damages;  Exemplary  Damages;  Message. 


INDEX.  817 

IK.'fci'i'iKTS   ai'f    to   HcrtloiiK.  1 
NEWS— 

contracts  to  furnish,  425,   42fi. 
liability  for  errors  in  furnishing,  420. 
companies  organized  for  furnishing,  427. 
liability  for  libelous,  606. 

NEWSPAPER— 

discrimination   in   rates   of  telegrai)li   company   for   service  to, 
240. 

NIGHT   MESSAGES— 

time  of  delivery  of,  402. 

NOTICE— 

in  condemnation  proceedings,  137. 

of  claim  against  company,  397,  398. 

by  telegram,  696. 

to  produce  telegram  for  use  as  evidence,  688. 

NUISANCE— 

erection  of  telegraph  poles,  etc.,  16. 

obstruction   of  streets  by  lines,   61. 

lines  erected  without  authority,  95. 

lines  constructed  under  authority  are  not  a,  118. 

building  of  lines  on  streets  when  a,  121. 

remedies  of  land  owner,  121. 

construction  of  line  without  authority  as  a,  123. 

trees,  a  sidewalk,  129. 

improper  location  of  lines  on  highways  and  streets,  185. 

broken  and  hanging  wires  as,  188. 

state  may  remove  lines  as  a,  when,  215. 

city  may  abate  lines  as  a,  232. 

See   Injunction. 

O. 

OATH— 

administered  over  telephone,  701. 

OBSTRUCTION— 

right  of  telegraph  company  to  remove,  on  its  right  of  way.  16. 

obstructing  lines  of  company,  201. 

of  interstate  commerce  by  taxation,  653. 

OFFICE— 

of  company  must  be  kept  open,  220. 
T.  lit  T.— 52. 


818  INDEX. 

[Uefprenres  nri"   ti>  sections.] 

OFFICE  HOURS— 

reasonable,  of  company,  295. 
regulation  of,  345. 
waiver  of  regulation,  348. 
of  other  company,  349. 
as  affecting  duty  of  company,  350. 
knowledge  of  sender  as  to,  351. 

defense  that  terminal  office  was  closed,  in  action  for  statutory 
penalty,  636. 

OPTION— 

delay  of  message  to  close,  measure  of  damages,  554. 

ORDINANCES— 

of  city  granting  right  of  way,  81. 

granting  company  right  in  streets  as  a  vested  right,  180. 

regulating  construction  of  lines  in  streets,  180. 

reservations  in,  granting  franchise,  181. 

granting  franchise,  cannot  be  annulled  or  altered,  222. 

See  Municipal  Corporations. 

P. 

PACIFIC  RAILROADS— 

right  of  way  for  telegraphs,  71. 
telegraph  lines  over,  213. 

PARTIES— 

in  mandamus  proceedings  against  telephone  company,  255. 

right  of  third  party  to  sue  on  contract  made  for  his  benefit, 
471,  475. 

to  actions  for  damages  resulting  from  negligent  delays  in  trans- 
mission or  delivery  of  messages,  407-491. 

PARTNERSHIP— 

arrangements  between  the  several  lines,  460. 

PATENTS— 

lessee  of  telephone  patent  cannot  evade  duty  to  public,  252. 

PAYMENT— 

necessity  of  prepayment  of  charges,  273. 

PENALTY— 

for  failure  to  deliver  message,  217-219,  304. 
right  of  action  under  special  statute,  486. 
object  and  purpose  of  statutory  penalty,  617. 


INDEX.  819 

[UeferencfH  are  to  Bpctloiis.] 

PENALTY— Continued. 

construction  of  statutes  imposing,  618,  619. 

is  not  damages  for  person  injured,  620. 

who  may  maintain  action  for,  621. 

statute  imposing  has   no   extra-territorial   effect,   622. 

constitutionality  of  statute  imposing  penalty,  623,  624. 

Indiana  statute  considered,  624. 

message  relating  to  futures,  625. 

as  to  cipher  message,  626. 

message  not  written  on  blank  of  company,  627. 

proof  of  breach  of  duty  in  failing  to  comply  with  statutes,  628, 

629. 
pleading  in  action  for,  504,  630,  631. 
actual  damages  need  not  be  proven,  632. 
action  for,  does  not  bar  action  for  damages,  633. 
action  for  survives,  634. 
liability  of  connecting  line  for,  635. 
defense  to  actions  for,  636-643. 
when  terminal  office  is  closed,  636. 
delivery  beyond  free  limits,  637. 
contributory  negligence  of  injured  party,  638. 
inadvertent  or  harmless  errors,  639. 
Sunday  messages,  640. 

effect  of  stipulations  as  to  time  for  presenting  claim,  641. 
accord  and  satisfaction,  642. 
prepayment  of  charges,  643. 
effect  of  repeal  of  statute,  644. 
See  Message;  Negligence;  Statute. 

PETITION— 

for  right  of  way,  132. 

for  right  of  way  over  railroad,  160. 

PLEADINGS— 

in  action  against  company,  498. 

under  special  statutes,  500. 

amendment  of,  502. 

in  action  for  statutory  penalty,  504,  630,  631. 

POLES— 

placing  underground,  91. 

POLES  AND  WIRES— 

erected  under  agreement   with  land  owner,    subject    to    prior 

mortgage,  129. 
description  of  in  condemnation  proceedings,  136. 

T.  &  T.— 53. 


820  INDEX. 

[References  are  to  sections.] 
POLES  AND  WIRES— Continued. 

removal  of,  by  railroad  on  its  rigM  of  way,  151. 

construction  of  over  railroad  right  of  way,  170. 

strength  and  stability  of  poles,  187. 

construction  and  maintenance  of,  190. 

injuring  and  destroying,  201. 

power  of  city  over  in  city  streets,  231. 

liability  for  falling,  190. 

construction  of  regulated  by  state,  215. 

See  Construction  and  Maintenance;    Municipal  Corporations. 

POLICE  POWER— 

of  states  over  lines  on  post  roads,  etc.,  61. 

lines  in  streets  and  highways,  91,  92. 

of  municipality  over  streets,  81. 

of  municipalities  in  regulating  lines,  182. 

of  state  over  foreign  companies,  212. 

of  state  to  control  and  regulate  companies,  214. 

of  state  cannot  be  alienated  or  abridged,  214. 

of  congress  over  interstate  commerce,  216. 

of  cities  to  regulate  companies,  231. 

licenses  that  are  within,  233. 

See  Municipal  Corporations;  State. 

POSTAL  LAW— 

not  applicable  to  telegraph  messages,  713,  714,  716,  726. 

POST  ROADS— 

telegraph  lines  along,  57-60. 
include  streets  in  cities,  61. 
right  of  way  over,  142. 

PRACTICE— 

in  actions   against  companies,   492-513. 

PREFERENCE— 

telegraph  company  must  not  give  preferences  in  rates,  240. 
in  rates,  what  reasonable  discrimination,  241. 
See  Discrimination. 

PRESUMPTION— 

of  negligence  of  company  on  failure  to  deliver  message,  311. 
in  case  of  error  in  message,  311. 

company  presumed  to  perform  contract  in  transmission  and  de- 
livery of  message,  321. 
of  negligence,  507. 
See   Negligence. 


INDEX.  821 

[References  are  to  Bectlons.] 

PRINCIPAL— 

message  sent  by  agent,  principal  nndisclosed,  who  may  sue,  469. 
See  Agent. 

PRIVILEGED  COMMUNICATION— 
telegraph  messages  as,  41,  711-722. 
when  message  in  hands  of  company  may  be,  717 
See   Evidence. 

PROCESS— 

service  of  against  company,  497. 

PROFITS— 

loss  of,  as  damages,  526,  527,  544. 

as  damages,  when  sale  prevented,  546. 

as  damages,  on  order  for  bonds,  stocks,  etc.,  552. 

See  Damages. 

PROPERTY— 

character  of  poles,  wires  and  lamps,  20. 

PROXIMATE  CAUSE— 

of  injuries,  192. 

negligence  of  company  must  be  proximate  cause  of  injury,  195. 

contributory  negligence  as,  314. 

negligence  of  company  must  be  to  hold  company  liable,  325. 

evidence,  when  defense  act  of  God,  357. 

defense,  that  loss  was  caused  by  mob  or  strike,  365. 

between   connecting  lines,  458. 

See   Negligence. 

PUBLIC  COMPANIES— 

must  serve  all  alike,  38. 
See  Discrimination. 

PUBLIC  ENEMY— 

company  not  liable  for  injuries  caused  by,  358. 
meaning  of  term,  358. 

PUBLIC  LANDS— 

telegraph  lines  over,  57-60. 

PUBLIC  USE— 

business  of  companies  is  a,  15. 

government  regulation  of  companies,  18. 

erection  of  lines  as  a,  96. 

taking  of  property  for,  97. 

laud  taken  for,  may  be  condemned  for  another  public  use,  152. 

See   Eminent   Domain. 


822  INDEX. 

[References  are  to  sections.] 
R. 

RAILROAD— 

right  to  compensation  for  telegraph  line  along  its  right  of  way, 

64,  65. 
state  statutes  granting  right  of  way  along  railroad,  73. 
lines  must  not  interfere  with  travel  over  railroad,  74. 
must  be  compensated  for  use  of  its  road  bed,  75. 
cases  relating  to  compensation  for  building  in  city  streets  re- 
ferred to,  98-106. 
construction  of  lines  crossing,  189. 
telegraph  lines  over  subsidized  railroads,  213. 
right  of  company   under  act   of   Congress   over   railroad   right 

of  way,  142. 
additional  burden  to  the  easement,  143. 
right  to  compensation,  143. 

subsequent   purchaser  may   recover  compensation,   144. 
line  constructed  by  railroad,  145,  146. 
must  be  in  good  faith  for  use  of  railroad,  147. 
renting  by  railroad  to  another  company,  147. 
railroad  lines  when  not  taxable,  148. 
compensation  to  railroad  companies,  149. 
right  of  way  must  be  by  authority,  150. 
interest  acquired  by  company,  151. 
removal  of  poles  by  railway  company,  151. 
condemnation  over  railroad  right  of  way,  152. 
exceptions  to  rule,  153. 
railroad  cannot  defeat  condemnation  proceedings  by  claiming 

it  should  be  on  other  lands,  154. 
rights  of  foreign  companies,  155-157. 
company  must  act  in  good  faith,  158. 
what  portion  of  right  of  way  may  be  taken,  159. 
petition  to  condemn  right  of  way  over,  160. 
there  must  be  a  necessity  for  the  taking,  161. 
telegraph  company  may  condemn  land  in  several  counties  in 

one  proceeding,  162. 
proceedings  where  instituted,  163. 
appointment  of   commissioners,   165. 
duties  of  commissioners,  165. 
special  court  for  proceedings,  166. 
award  of  commissioners,  167. 
either  party  have  new  award,  168. 
duty  company  owes  to  railroad,  170. 


INDEX.  823 

[ReferenceK  are  to  sections.] 

RAILROAD— Continued. 

measure  of  damages,  extent  of  injury,   171-17.3. 

no  exclusive  right  granted,  174. 

contract  for  exclusive  right  invalid,   175. 

no  exclusive  right  under  state  legislation,  176. 

act  of  Congress  prohibits  exclusive  right,  177,  178. 

municipal  grants  not  exclusive,  179. 

vested  right  that  cannot  be  impaired,  180. 

reservations  in  ordinances,  181. 

police  power  of  state  and  municipality,  182. 

power  of  railroad,  in  constructing  a  telegraph  line  for  its  use, 

145. 
See  Eminent  Domain. 

RATES— 

government  regulation  of,  18,  19. 

powers  to  regulate  does  not  confer  power  to  fix  rate  of  charges, 

19. 
state  may  regulate  to  points  within  state,  221. 
regulation  of,  by  state,  223,  224. 
fixed  by  statute  cannot  be  indirectly  evaded,  226. 
statute  rates  must  be  reasonable,  227. 
state  cannot  fix  rate  on  interestate  business,  228. 
municipality  cannot  regulate  control  express  authority,  234. 
telegraph  company  cannot  unjustly  discriminate  in  charges,  239. 
must  be  relatively  reasonable,  240. 
reasonable  discrimination  in,  241. 
determination  of  reasonable,  242. 

telephone  company  nlust  not  unlawfully  discriminate,  243. 
free  to  employe  by  telephone  company,  247. 
telephone  company  must  have  uniform,  247. 
mandamus  to  compel  telephone  company  to  comply  with  lawful, 

247. 
discrimination  in  rates  of  telephone  company,   247. 
telephone  company  may  refuse  to  furnish  service  for  failure  to 

pay,  251. 
necessity  of  prepayment  of  charges,  273. 
See  Cliarges. 

RATIFICATION— 

of  unauthorized  transfer  of  franchise,  49. 
REGULATION  AND  CONTROL— 

of  companies  by  federal  and  state  laws,  211,  212. 
REMOTENESS— 

of  damages  .524,  526,  530,  563. 

See  Damages. 


824  INDEX. 

[References  are  to  sections.] 

RENTAL— 

telephone  company  may  enforce  payment  of,  352. 
what   are   reasonable   reflations    of   telephone   company    con- 
cerning, 352. 
for  lines  on  city  streets,  86,  87. 
reasonableness  of  city  charge  of,  89. 
See  Charges;   Rates. 

REPEATING  MESSAGE— 
stipulation  for,  375,  376. 
extra  charge  for,  considered,  377. 

addressee's  right  of  action  when  message  not  repeated,  487. 
See  Message. 

RESERVATIONS — 

in  ordinances  granting  franchises.   181. 
See  Ordinances;    Municipal   Corporations. 

RESOLUTIONS— 

of  company  distinguished  for  rules  and  regulations,  337. 

REVOCATION— 

of  franchise,  discussed,  55. 

by  city  of  right  of  way  granted,  82. 

RIGHT  OF  WAY— 

See  Eminent  Domain. 

RH'ER— 

line  of  wires  across,  58,  59. 

lines  not  obstruct  travel  upon,  78. 

obstruction  to  navigation  by  cable,  191. 

ROADS  AND  HIGHWAYS— 

what  embraced  in  term  road,  77. 
powers  of  state  and  cities  over,  91,  92. 
difference  between,  and  city  street,  100. 
right  of  abutting  owner  discussed,  110. 

company  must  exercise  reasonable  care  in  the  location,   con- 
struction and  maintenance  of  lines  on,  185. 
construction  of  lines  crossing,  189. 
state  may  regulate  construction  of  lines  on,  215. 
See  Streets. 

RULES  AND  REGULATIONS— 

of  business  companies  by  state,  214. 
by  state  of  companies,  221. 


INDEX.  825 

[References  are  to  Rectlons.] 

RULES  AND  REGULATIONS— Continued. 

concerning  telephone  instruments  by  company,  251. 

right  of  company  to  make,  333. 

with  respect  to  news  messages,  427. 

right  of  company  to  make  reasonable,  333. 

must  be  reasonable,  333. 

must  be  reasonably  applied,  335. 

as  question  of  law  or  fact,  336. 

distinction  between  and  by-law,  337. 

distinction  between  and   resolution,   337. 

requiring  message  to  be  written,  338,  339. 

providing  that  message  shall  not  contain  indecent  or  immoral 
language,   338. 

that  message  shall  be  signed,  338. 

company  cannot  demand  that  it  be  informed  of  the  nature  and 
purport  of  the  message,  339. 

requiring  delivery  at  office  of  company,  340. 

requiring  prepayment  of  charges,  341. 

extra  charges  for  delivery  beyond  free  delivery  limit,  342. 

deposit  of  charges,  for  answer  to  message,  343. 

regulation  of  office  hours,  345,  346. 

reasonableness  of  office  hours,  347. 

waiver  of  regulations,  348. 

telephone  companies  may  make  reasonable,  352. 

reasonable  requirement  concerning  charges  and  tolls  of  tele- 
phone companies,  352. 

of  telephone  company  may  be  waived,  353. 

stipulation  for  repeating  messages,  375,  376. 

stipulation  as  to  time  of  presenting  claims,  385,  390. 

stipulation  as  to  liability  over  connecting  lines,  404. 

stipulation  as  to  cipher  messages,  405,  406. 

stipulation  as  to  where  and  when  message  accepted,  407. 

stipulation  as  to  delivery  to  messenger,  408. 

waiver  of  stipulation  limiting  liability  of  company,  409. 

burden  of  proof  when  company,  relies  upon  stipulations  in  con- 
tract, 410. 

proof  of  assent  to  stipulation,  411,  412. 

assent  of  addressee  to  stipulations  in  blank,  415-418. 

stipulations  posted  in  office  not  binding,  420. 


SALE— 

of  franchise  of  company,  46,  47. 


826  INDEX. 

[References  are  to  sections.] 

SALES— 

messages  conceruiug,  duty  of  company,   545. 

measure  of  damages  for  negligence  of  company,  message  relat- 
ing to,  545,  546. 

order  for  goods  not  delivered,  548. 

measure  of  damages,  549. 

when  order  for  goods  erroneously  transmitted,  duty  of  pur- 
chaser, 550. 

when  goods  shipped  to  wrong  place,  551. 

errors  in  announcement  of  prices  or  state  of  market,  555. 

measure  of  damages,  delay  in  message  directing  agent  to  sell 
or  purchase,  553. 

how  affected  by  statute  of  frauds,  703-710. 

contracts  for,  made  by  telegram,  723-744. 

See  Contract. 

SECRECY— 

of  telegraph  message,  41. 

duty  to  preserve  secrecy  of  message,  305. 

See  Message. 

SERVICE— 

when  telephone  company  may  refuse  to  furnish,  250. 

of  process  against  company,  497. 

of  subpoena,  or  writ  to  produce  telegram,  721,  722. 

SIGNATURE— 

proof  of,  to  message,  675. 

SPECULATIVE— 

damages  not  recoverable,  563. 

rules  as  to  speculative  damages,  524,  526,  530. 

See  Damages. 

SPECIFIC   PERFORMANCE— 

remedy  by,  against  company,  496. 

STAMP— 

duty  to  affix  to  message  when  required  by  law,  318. 

STATE— 

may  make  grants  of  right  of  way,  72. 

statutes  granting  rights  to  companies,  92. 

supreme  control  of  highways  and  streets,  93. 

cannot  grant  exclusive  right  over  right  of  way  of  railroad,  177. 

regulation  of  companies  by,  211. 

power  of  regulation  and  control,  212. 


INDEX.  827 

[References  are  to  sections.] 

STATE — Continued. 

control  and  regulation  of  lines,  by,  214. 

may  regulate  construction  of  lines,  215. 

control  of  domestic  commerce,  216. 

may  regulate  rates  to  points  within  state,  221. 

limitation  on  state  powers,  222. 

may  prevent  (liseiiinination  in  charges,  339. 

See  Legislature;   Police  Power. 

STATUTE— 

concerning  telegraphs,  when  embracing  telephones,  5-14. 

declaring  companies  common  carriers,  considered,  30-33. 

becomes  a  part  of  the  contract  of  companies,  33. 

granting  rights  to  companies,  92. 

regulating  condemning  right  of  way  for  additional  public  use, 

152. 
no  exclusive  grant  of  right  of  way  under,  176. 
imposing  liability  on  company  for  injuries  to  employe,  199. 
imposing  duties  to  furnish  equal  facilities,  245. 
making  company  liable  for  mistakes,  280,  281. 
regulating  free  delivery  limit,  296. 
imposing  penalty  for  failure  to  deliver  message,  304. 
imposing  duty  to  preserve  secrecy  of  message,  306. 
regulating  office  hours,  347. 

imposing  penalties  on  company  for  negligence,  368. 
prohibiting  company,   from  contracting  against  acts   of  negli- 
gence, 370. 
imposing  penalties  on  companies  for  failing  to  perform  duties, 

387,  388. 
penalty  not  applicable  to  messages,  of  necessity  and  charity  to 

be  sent  on  Sunday,  438. 
making  initial  company  liable  over  connecting  line,  453. 

right  of  action  under,  resulting  from  negligent  delays  in  trans- 
mission  or   delivery  of  messages,   482. 

right  of  action  under   special,  486. 

pleading  under  special,  500. 

allowing  damages  for  mental  anguish,  599. 

imposing  penalty,  object  and  purpose,  617. 

construction  of,  imposing  penalty,  618,  619. 

imposing  penalty  has  no  extra-territorial  effect,  622. 

constitutionality  of  statutes  imposing  penalty,  623,  624. 

Indiana  statute  considered,  624. 

proof  of  breach  of  duty  imposed  by,  628,  629. 

pleading  in  action  for  penalty  under,  630,  631. 

action  for  statutory  penalty,  no  bar  to  action  for  damages.  GH3. 


828  INDEX. 

[References  are  to  sections.] 

STATUTE — Continued. 

liability  of  connecting  line  for  penalty  under,  635. 
defenses  to  action  to  recover  penalty  imposed  by,  636  643. 
effect  of  repeal  of  statute  imposing  penalty,  644. 
forbidding  disclosure  of  telegram,  715. 
See  Constitutional  Law;   Penalty. 

STATUTE  OF  FRAUDS— 

applicability  of  to  company,  702. 

subject  matter  to  which  statute  applies,  703. 

how  statute  may  be  satisfied,  704. 

company  as  agent  of  the  sender,  705. 

effect  of  delivery  of  message  to  company,  706. 

effect  of  delivery  of  telegram  to  addressee,  707. 

what  telegram  should  contain  to  comply  with  statute,  708 

time  of  delivery  with  respect  to  making  of  contracts,  709. 

written  contracts  adopted,   710. 

company  as  agent  of  sender  of  message,  738,  740. 

STOCK  QUOTATIONS— 
contracts  to  furnish,  426. 
See  Contract. 

STOCK— 

measure  of  damages,  erroneous  message  for,  552. 
See  Damages. 

STORMS— 

strength  and  stability  of  poles,  187. 

failure  to  restore  line  after  storm,  188. 

liability  for  injuries  from  broken  and  hanging  wires,  188. 

See  Negligence. 

STREETS— 

municipal  regulation  of  lines  on,  61. 
compensation  to  abutting  land  owner,  64. 
embraced  in  term  "public  highways,"  77. 
powers  of  municipality  over,  80. 
powers  of  cities  over  lines  on,  91. 
power  of  state  over,  discussed,  92. 
difference  between,  and  ordinary  highway,  100. 
uses  to  which  easement  in  may  be  put,  108. 
rights  of  abutting  owner  discussed,  110. 

enjoining  interference  by   one  company  with   another  in   con- 
structing line   in   streets,   179. 
powers  of  city  to  regulate  construction  of  lines  in  streets,  180. 
extension  of  lines  on,  183. 


INDEX.  829 

t  Ili'f iTonces  are  Id  Hectlonfi.  ] 

STREETS— Continued. 

company   must   exercise    reasonable   care   in    construction    and 

maintenance  of  lines  on,  185. 
liability  from  broken  and  hanging  wires,  188. 
construction  of  lines  crossing,  189. 
construction  of  poles  on,  190. 

state  may  regulate  construction  of  lines  on  streets,  215. 
powers  of  municipalities  to  regulate  lines  on,  231. 
taxation  as  compensation  for  use  of  streets,  66.3. 
See  Municipal  Corporations;   Roads  and  Highways. 

STRIKES— 

liability  for  injuries  caused  by,  360. 

SUBPOENA— 

duces  tecum  to  produce  telegram,  718,  719. 
description  of  message  in  writ,  720,  721. 
service  of,  to  produce  telegram,  721,  722. 

SUBSCRIBER— 

refusal  of  telephone  company  to  furnish  service  to,  251. 
See  IVIesSage. 

SUMMONS— 

service  of,  on  company,  497. 

SUNDAY— 

company  need  not  transmit  news  on,   where  such   is   not  the 

custom,  39. 
no  duty  to  send  messages  on,  434. 
matters  of  necessity  and  charity,  436,  437. 
no  defense  in  action  for  tort,  439. 
in  action  to  recover  statutory  penalty,   defense  that  message 

was  delivered  on,  640. 

T. 

TAXATION— 

of  telegraph  or  telephone  companies,  13. 

no  exemption  from,  on  lines  across  navigable  streams,  59. 

no  exemption  from  on  lines  placed  on  streets,  etc.,  61. 

and  toll  distinguished.  87. 

of  telegraph  and  telephone  lines,  148. 

railroad  line  when  not  taxable,  148. 

of  foreign  company  by  states,  216. 

of  domestic  companies  by  municipalities,  216. 

power  of  state  to  tax,  646. 


830  INDEX. 

[Ueferences  are  to  sections.] 

TAXATION— Continued. 

how  assessments  may  be  made,  647. 

methods  of,  648. 

classification  for,  discretion  of  legislature,  649. 

payment  of  tax,  when  properly  assessed,  650. 

discrimination  in,  651. 

lien  of  the  assessment,  652. 

obstruction  of  interstate  commerce,  653. 

property  of  company  used   in  interstate  commerce  subject  to 

state  taxes,  654. 
taxation   on   capital   stock   in   proportion   to   length   of   line   in 

state,  655. 
mileage  basis  of  valuation,  656. 

assessment  of  telegraph  lines  in  New  York  State,  657. 
imposition  of  license  tax,  658. 

distinction,  between  property   tax  and  privilege  tax,  659. 
license  tax  considered,  660. 
on  gross  receipts  of  company,  661. 
on  telegraph  messages  in  general,  662. 
municipal  taxes,  compensation  for  use  of  streets,  663. 
city  license  tax  on  telegraph  companies,  664. 
special  franchise  taxes,  665. 
where   right  of  being   a   corporation   is   derived    from   federal 

government,  666. 
interest  when  payment  of  taxes  is  delayed,  667. 
taxes  of  telephone  companies,  668. 
See  License  Tax. 

TELEGRAM— 

defined,  670. 

See  Evidence;  Message. 

TELEGRAPH— 
term  defined,  1. 

distinguished  from  telephone,  3,  4. 
along  railroad  not  an  additional  servitude,  7. 
statute  regulating,  embraces  telephone  company,  when,  5-14. 
See  Message. 

TELEPHONE;- 
term  defined,  1. 

distinguished  from  telegraph,   '^.  4 
embraced  in  telegraph  legislation,  when,  5-14. 
law  concerning  telegraph  company  applicable  to,  17. 
belonging  to  individuals,  when  under  control  of  public,  19. 
See  Message. 


INDEX.  ^^1 

[Ueferences  are  to  scctloiiF.] 

TERMINATION— 

of  franchise  to  occupy  streets,  90. 
See  Franchise. 

TIME— 

in  which  claims  against  company  are  to  be  presented,  385. 
stipulation  held  void  as  against  public  policy,  389. 
delivery  of  night  messages,  402. 

effect  of  stipulation  of  time  of  presenting  claim  in  action  for 
statutory  penalty,  640. 

TICKERS— 

district  telegraph  companies    and    such    as    furnish  "tickers," 

745-751. 
See  District  Telegraph  Company. 

TOLLS— 

telephone  company  may  enforce  payment  of,  352. 
what  are  reasonable  regulations  of  telephone  company  concern- 
ing, 352. 
See  Charges;  Rates;   Rental. 

TORT— 

company  liable  for,  after  wrongful  alienation  of  franchise,  47. 
telegraph  company  need  not  receive  message  that  would  sub- 

iect  it  to  action  of  tort,  268. 
action  for  damages  from  negligent  delays  in  transmission  of 

message,  468. 
measure  of  damages,  518. 
exemplary  damages  in  actions  for  600-608. 
action  by  addressee  of  message,  417.  418. 
See  Action;    Damages;    Exemplary  Damages;    Negligence. 

TRANSMISSION— 

of  messages,  257-308. 
See  Message. 

TREES— 

cutting  of,  by  telegraph  companies,  16. 
liability  of  company  for  cutting,  125-127. 
on  sidewalks,  liability  of  company.  128. 
on  sidewalks,  rights  of  owner,  128. 
exemplary  damages,  wrongfully  cutting,  608. 
powers  of  cities,  trees  on  city  streets,  128. 

TRESPASS— 

of  company  cutting  trees.  126,  127. 
injuring  or  destroying  lines,  201. 
liability  of  company  for  malicious,  608. 


832  INDEX. 

[References  are  to  sections.] 

TROLLEY  SYSTEM— 

consi(Jered  and  explained,  203. 

U. 

ULTRA  VIRES— 

transfer  of  franchise,  when,  46. 
See  Franchise.. 

UNAVOIDABLE  INTERRUPTION. 

special  contract  against,  403. 
See  Contract;  Message. 

UNDERGROUND  WIRES— 

placing  wires  in  streets,  61,  181. 

power  of  city  to  compel  company  to  place  wires  underground, 

231,  232. 
See  Poles  and  Wires. 

V. 

VERDICT— 

for  excessive  damages,  when  set  aside,  612-614. 
See  Damages. 

VERIFICATION— 

of  petition  in  condemnation  proceedings,  138. 

W. 

WAIVER— 

of  damages,  owner  failing  to  take  action  against  wrongful  entry 

of  company,  53. 
by  company  of  extra  compensation  for  delivery  beyond  free 

limit,  298. 
by  company  of  prepayment  of  charges,  344. 
of  office  hour  regulation,   348. 
of  regulations  of  telephone   company,   353. 
of  written  claim  against  company,  394. 
of  stipulation  limiting  liability  of  company,  409. 
of  requirement  of  writing  message  on  blank  of  company,  627. 

WAR— 

companies  not  liable  for  injuries  caused  by,  358. 

WIRES. 

character  of  property,  20. 

obstruction   in  streets,  placing  under   ground,  61. 


INDEX.  833 

I  References  are  to  sectlone.] 

WIRES— Continued. 

elevation  of  in  streets,  94. 

construction  of  over  railroad  right  of  way,  170. 

placing  under  ground,  181. 

injuries  from  abandoned  wires,  186. 

liability  for  injuries  from  broken  and  hanging  wires,  188. 

liability  for  improper  construction  in  street,  190. 

injuring  or  destroying,  201. 

regulation  of,  by  cities,  231. 

exemplary  damages  in  case  of  falling,  610. 

See  Negligence. 

WIRELESS   TELEGRAPHY— 

proof  of  message  by,  discussed,  691. 

WITNESSES— 

testimony  of,  in  actions,  692. 
See  Evidence. 


LAW  TJTIRARY 

UNIVERSITY  OF  CALIFORNIA 

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